The US attorney prosecuting Comey and James faces a legal challenge over her appointment

President Trump’s Justice Department was on the defensive in a Northern Virginia courtroom. A judge is considering whether to disqualify the US prosecutor pursuing charges against former FBI Director James Comey and New York Attorney General Letitia James. The prosecutor, Lindsay Halligan, is a Trump ally and has no prosecutorial experience. Jeff Bennett discussed more with Glenn Kirshner.

Amna Nawaz:

Welcome to the News Hour.

President Donald Trump’s Justice Department was on the defense today in a Northern Virginia courtroom. A judge is considering whether to disqualify the prosecutor pursuing charges against former FBI Director James Comey and New York Attorney General Letitia James.

Jeff Bennett:

The prosecutor, Lindsay Halligan, is a Trump ally and has no prosecutorial experience. She was sworn in days after the former US Attorney General resigned after coming under pressure to charge Comey and James.

President Trump described both Comey and James as political enemies and called for their prosecution after they pursued investigations into him.

Glenn Kershner is a former Assistant U.S. Attorney in Washington, D.C., and he joins us now after attending today’s hearing.

It’s good to see you.

Glenn Kershner, former federal prosecutor:

Good to see you, Jeff.

Jeff Bennett:

So let’s start with this. How unusual is it for a criminal case to hinge on whether the prosecutor was legally appointed?

Glenn Kirshner:

Very unusual.

This is a high-stakes motion that we saw being filed today, because in essence, if Judge Currie, who is presiding over this motion, were to decide that Lindsey Halligan was not legally appointed, because she was the only person on the grand jury that got this indictment, that would very likely result in the case being completely dismissed against both James Comey and Letitia James.

In fact, the only thing left to debate is whether he should be charged with or without bias. Bias means there will be an opportunity for the Justice Department to go back and try to right the wrong — without bias, instead.

With prejudice means the matter is over and Donald Trump will never be able to prosecute James Comey or Letitia James.

Jeff Bennett:

Defense attorneys have pointed to public pressure from President Trump — public pressure, to include in his own social posts the truth — as you see one there on the screen — as evidence that these prosecutions were politically motivated.

From a legal perspective, what weight does the president’s rhetoric carry in assessing whether these prosecutions are selective or retaliatory?

Glenn Kirshner:

Unusual weight.

So every word that Donald Trump said about James Comey or Letitia James, and anything he ever posted, is all admissible evidence on the question of whether this was a retaliation and/or a selective prosecution. All of these are called confessions by the party’s opponent.

And today’s hearing wasn’t directly about that, but a little bit of that crept into some of the questions the judge was asking. For example, I opened by asking, Have the parties seen a motion to dismiss where previous career prosecutors declined to bring these charges because there was insufficient evidence to do so?

The defense said we don’t, but we want to and will need it in discovery.

Jeff Bennett:

No matter which way this judge rules – and I believe he will rule by Thanksgiving. Is that what she said?

So what impact does this entire episode have on public confidence in the Department of Justice?

Glenn Kirshner:

It doesn’t enhance it, Jeff.

I think, in my experience, I was a federal prosecutor for 30 years. And the whole White House seems to understand the importance of this separation between the administration and the White House and the Oval Office and the Justice Department, because people have to have confidence that the Justice Department is making prosecutorial decisions day in and day out without political interference or without political motivations.

And because Donald Trump has made it known, he’s appointed himself chief prosecutor on all the cases, and he’s posted things like, look, this makes us look bad, I want you all to take action against Tish James and Comeys and others, that wall, that segregation, is over.

I believe this severely undermines public confidence in the independence of the Department of Justice.

Jeff Bennett:

There has also been a hollowing out through firings, transfers and resignations of veteran lawyers.

Glenn Kirshner:

I am concerned about our national security. I worry, for example, about the people of the District of Columbia, whom I served for decades as a federal prosecutor in D.C. Reports indicate that this office has stopped working with approximately 100 lawyers.

Traditionally, we have only had about 325 prosecutors in this office. If we don’t have a third of the prosecutorial workforce, in my opinion, that’s a public safety problem in Washington, D.C

Jeff Bennett:

Returning to this issue in particular, what happens next?

Glenn Kirshner:

So, as I mentioned, Judge Currie has announced that she will issue a ruling for us before Thanksgiving. So we will wait every day to get that ruling.

If she grants the request, I believe that Judge Nachmanoff, who presides over the court in Virginia, will step back and will have to decide the consequences of her granting the request. The charges will likely be dropped. And then I think we all know where things are going next. It will be taken to the Court of Appeals and I assume the Trump administration will try to take the matter to the Supreme Court if it can.

Jeff Bennett:

Glenn Kirshner, great to see you. Thank you for coming.

Glenn Kirshner:

Thanks Jeff.