Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara. Hey folks, as you have no doubt heard, a federal grand jury in the Eastern District of Virginia has indicted former FBI director James Comey. This is a dangerous inflection point, a sitting president ordering the investigation, prosecution and ultimate imprisonment of his political critic over the objections not only of career prosecutors, but also his own handpicked political appointee. We’re sharing a recording of a live conversation I had earlier today on Substack with my Insider Podcast co-host, Joyce Vance. We’ll have a lot more next week on the Insider Podcast. You can support our work by becoming a member at cafe.com/insider or staytuned.substack.com. That’s cafe.com/insider or staytuned.substack.com.

As people who know me, I think realize that I’m not given to hyperbole. I’ve been practicing law for a long time, as have you, I’ve been a prosecutor for a long time. I’m now doing defense work among other things, and this is a different thing. You and I had a conversation earlier about whether or not a Rubicon had been crossed. You may have a view that it was crossed some time ago. I think this is a next level inflection point where you have a sitting United States president basically ordering the investigation, prosecution and ultimate imprisonment of his political critic over the objections not only of career prosecutors, but also his own handpicked political appointee in the Eastern District of Virginia to get back at his adversary. And that’s different and we’re going to get to the MAGA complaints about how, well, you did the same thing to Trump. It’s not true. It’s really, really, really not true. We’ll get to that in a moment. Joyce, what’s your first reaction?

Joyce Vance:

I feel like we maybe crossed the Rubicon or started to cross the Rubicon, maybe it didn’t all happen at once, at least when the interim US attorney in the Southern District of New York resigned because she was directed to dismiss the indictment of the mayor in New York City, and it was a political rationale, not a legal one. But I think you’re right. This is the boldest, clearest statement that Donald Trump intends to take control of and abuse the power of the criminal justice system.

And I want to just put one little asterisk, maybe it’s a moment of hope before we start talking about this incredibly serious difficult moment, and here’s the bit of hope. We’ve watched the First Amendment debacle of the last week with Jimmy Kimmel’s banishment and then return to television. Americans are paying attention, and so my hope is that they will pay attention when we express how important this moment at DOJ is, and that the country is ready to finally tell Donald Trump no.

Preet Bharara:

Yeah, I’m not so optimistic about that. I think-

Joyce Vance:

I didn’t say I was optimistic. I just said I think that this is the opportunity.

Preet Bharara:

I hear you. What did you think of Jim Comey’s response? “Let’s have a trial,” he said.

Joyce Vance:

Yeah, he wants a trial. Look, you’re the defense lawyer, not me, but if I’m Jim Comey’s lawyer, I’m telling him you can have a trial in due time but before we get there, we are going to make every argument we can make on your behalf, both the legal ones and the factual ones, we’re going to preserve every potential defense that could prevent your conviction ultimately. So you can have your trial, just not immediately.

Preet Bharara:

Yeah, let’s talk about some of the surrounding circumstances here a little bit more, then we’ll get to the merits and then we’ll get to have this is different and I think brutal to the rule of law and any ordinary good faith conception of the rule of law. You have a sitting US attorney appointed by Donald Trump who went through a process. They did an investigation, multiple assistant US attorneys were involved. They looked at the facts and they wrote a memo, what’s known as a pros memo that people write in US attorney’s offices and in DA’s offices around the country every single day.

It’s in writing and I would expect at some point by some means we’ll see that document. And it said, reportedly, not only is there not a basis to believe that we can win a conviction on these grounds beyond a reasonable doubt before a unanimous jury, but that probable cause did not exist. As I understand it from the reporting also said things like it would be unethical and against DOJ policy to bring such a case, and he was set aside and an inexperienced, inexperienced by the way is a mild and generous term to apply to the newly sworn in US attorney who, no denigration of the legal experience that she had, but it’s not this experience.

You and I were joking earlier, Joyce, or I was at least joking to you that I remember my first grand jury presentation 25 years ago and I was nervous as hell. It’s a big responsibility and for someone who’s never been in the grand jury before and the understanding is that she went in alone, she signed the indictment alone, lost one of the counts in the ham sandwich grand jury perjury. We don’t know exactly what that count was. That’s an extraordinary way to proceed. By the way, she also was the former personal lawyer of the president. So you have the former personal lawyer of the president doing the bidding of that person over the objection of his hand-selected United States attorney. And before we even get, and I’ll stop talking a second.

Joyce Vance:

No, this is great. Keep going.

Preet Bharara:

Before you even get to the merits, and we’ll get to the merits in a moment, because I don’t believe that any reasonable jury is going to find Jim Comey guilty of any one of these two counts. All the things accompanying the nature of the indictment tell you it was rotten and corrupt to the core. Is that a fair statement?

Joyce Vance:

Yeah, I mean, I think it is. If there was just one of these unusual things, like the US attorney going in on her own or the president demanding the indictment, I mean even one would frankly be eyebrow raising, but it’s all of them together all at once. I think, my sense talking to DOJ people is everyone is fairly gobsmacked by this. I think a lot of us sensed that it was coming, that this indictment would happen. Happening in this fashion with a US attorney going into the grand jury, having the grand jury no-bill one of the counts, which is very unusual, and then sign off on the others. It certainly makes you wonder what she talked about that grand jury with and whether she crossed any impermissible lines. I suspect we’ll see that transcript at some point. And that in and of itself is really unusual.

Preet Bharara:

Really want to see that transcript, Joyce. We want to see the memo, we want to see the transcript, and as I saw you speaking about on television a few minutes ago, maybe some of that will come to light appropriately through discovery. If you have one of these pre-trial motions. I guess somebody might argue, well there was probable cause because two counts were approved by the grand jury. But as I know you’ve been reminding people, a lot depends on what the presentation is.

And I have been reminding people for various reasons that Department of Justice policy for a long time has been you have to present clearly exculpatory material and information to the grand jury for the purposes of fairness and due process. And I’m really interested because we’re going to get to the merits in a few minutes and how the weight of the evidence is, I think overwhelmingly on Jim Comey’s side, based on a lot of things including an inspector general report from a few years ago. Was any of that other evidence presented or was it a one-sided… I mean, look, all grand jury presentations from the government are reasonably described and fairly described as one-sided, but there’s one-sided and then there’s really one-sided. What do you think?

Joyce Vance:

Yeah, I mean I think that that’s worth considering, and also this notion of how prosecutors can behave in the grand jury. For instance, you can’t testify about the evidence to the grand jury. You have to put on witnesses to do that, right? But you’re the grand jury’s legal advisor and if they have questions about the law, you explain the law to them, you might show it to them and entertain their questions. And I’m just super curious about how the process worked here. As you say, when you’ve got clearly exculpatory evidence, which is sort of a narrow slice of evidence, you’re obligated to present it. I think a fair reading of what we know about this case suggests that that might have existed here.

And it’s also, or at least it used to be the practice in this district in close cases or difficult cases to give the potential defendant the opportunity to testify in the grand jury. There’s no requirement that you do that, by the way, and in a number of districts that never happens. But that has happened in this district before and I wonder what sort of outreach they had with Comey, if that offer was maybe made and he declined it. I mean it’ll be interesting to [inaudible 00:10:09] that process.

Preet Bharara:

I really doubt the offer was made, whether the offer was made on the part of Jim Comey and his attorneys, I don’t know. By the way, somebody asked the question, who’s in the audience? I believe was the grand jury testimony taped, in the ordinary course it would not have been. I would not expect it to be, I’ve never seen it before.

Joyce Vance:

But there’s a transcript,

Preet Bharara:

There’s a transcript and the minutes of that will be very, very interesting. We have a lot of-

Joyce Vance:

Can I just address a procedural question? Somebody had asked, does the grand jury vote have to be unanimous? And the answer is no. Anything between 13 and 26 grand jurors, 13 as a quorum, you need 12 votes to obtain an indictment.

Preet Bharara:

So we don’t know what the votes were. There’s also what’s called the presumption of regularity in grand jury practice, and generally speaking, parties don’t get access to grand jury material. If there ever was a case where there should not be a presumption of regularity, this I think is one of those. Should we talk about who’s representing James B. Comey?

Joyce Vance:

I think we should do that. It’s an interesting matchup.

Preet Bharara:

So Patrick Fitzgerald, my former colleague from the Southern District of New York, the former US attorney in the Northern District of Illinois in Chicago, and the former special counsel who looked into the Valerie Plame matter, who’s a friend of yours and mine. I think pound for pound, one of the best attorneys, trial attorneys in the country, who has been basically retired from the practice of law for the last couple of years. He deserved it, he worked long and hard, has been spending time with his family, has come out of retirement to represent his friend and the former FBI director, Jim Comey.

I asked a question on Twitter last night, which was, who’s going to actually try this case? Is the newly installed former personal lawyer of Donald Trump going to try the case even though, because she was the one who went to the grand jury? And what do you think of a matchup, because Jim Comey says let’s have a trial, and I believe that if these motions don’t succeed he will go to trial. This is going to be a trial. How do you like the matchup between Patrick Fitzgerald and Ms. Halligan or someone else?

Joyce Vance:

So look, I would love to get to see that matchup. I don’t think we will. I never predict, but here I’m going to say I think this case gets dismissed on an early motion to dismiss for reasons we’ll maybe get around to discussing. That would be a hell of a matchup. So for people who don’t know, Fitz was an AUSA, as Preet said, in the Southern District of New York. I think, did he work on the pizza cases? Is that right? He was doing mob cases.

Preet Bharara:

He did a lot of mob cases, but also very significantly did a lot of terrorism cases as well.

Joyce Vance:

They had a weird tradition in Chicago. I think this is the only district I can think of where this happens of bringing people in from the outside to maintain that sort of above the political fray sort of patina. And so Pat was actually brought in, dropped in as the US attorney during the Bush administration in Chicago. He was so highly thought of that for, I think most of, I can’t remember how long he was there, it was years and years. He was also an Obama US attorney. We clearly thought of him as one of us.

And of course he and Comey were close from their time working together. I don’t think anyone was surprised that Pat is the lawyer here. But look, just as someone who’s interested in watching trial practice, I mean leave aside the horrible context here and what it means for democracy, it would be really interesting to see Pat try this case against a very inexperienced lawyer. She’s going to have to bring in a US attorney from another district.

Preet Bharara:

Yeah. Or someone from private practice or maybe someone from main justice. I don’t think she’ll be the trial lawyer. Okay, so you keep mentioning it and it’s I think a very important point. There are a couple of distinct, and we’ll go into more detail on on our podcast next week, but there are a couple of distinct motions that one could make that people sometimes conflate. One is a motion to dismiss based on vindictive prosecution and another is selective prosecution. The overlap in some ways, and we don’t have to go through all the distinctions, but in layperson’s terms, essentially under our system, there’s case law that says if you’re bringing a case for an improper purpose out of malice vindictively because the defendant, the target is exercising some right, then maybe you have a cause for the dismissal of the indictment.

Separate and apart from the lack of merit, any one of these motions on its own maybe has some merit given the circumstances here. But combined with the lack of merit of the prosecution itself, I think is part of the reason why you’re saying it may be very viable. Selective prosecution is a slightly different concept, and the concept there is, look, lots and lots of folks have come in the crosshairs of the Department of Justice for similar kinds of conduct. They’re generally not charged with this kind of thing. Depending on what the facts are and the circumstances, that could be dismissed also.

As everyone has said on television, myself and yourself included, I think, it is a very, very, very difficult uphill battle historically to win on that basis. But if ever there was a case that shows malice and vindictiveness as a lay person might understand the term vindictiveness, this is it. The cases of vindictive prosecution that arise are out of the examples, and you would know this better because you were a former appellate chief of your US attorney’s office, relate to instances where a particular defendant may have decided to exercise his or her right to go to trial, and for whatever reason, the charges were ratcheted up or there was a prosecutor, a line prosecutor on the other side who reacted a little overly heavy-handedly.

That’s the conduct of a line prosecutor on the other side behaving and acting vindictively. And it’s also very hard to prove because people are not going around saying, “I want to be vindictive and have retribution against that defendant for exercising their right. So I’m going to crush that person.” Here, it’s not a line assistant, it’s not a supervisor, it’s not a US attorney, it’s not the attorney general, it’s the president of the United States of America saying before the indictment, “I’m going to crush you. You’re guilty.” And then saying after the indictment, “Good job.” Is it going to win?

Joyce Vance:

Yeah. I mean I think of these collectively as the something is rotten in Denmark motions, right? As you said, normally the government gets a presumption of regularity, but Donald Trump is blowing it out of the water on Truth Social, if ever these motions succeed, it’s in this case. But you said something that I think is really interesting that may be the kicker in this area. You said combined with the weakness of the indictment, which I think does play in, I mean this is just a… Did you ever bring 1001 standalone charges? I did not let my folks do that.

Preet Bharara:

So remind me what 1001?

Joyce Vance:

1001 is the false statement to the governor.

Preet Bharara:

There are two counts. One is a false statement count.

Joyce Vance:

Well, there is, and then there’s the obstruction requires proof of a corrupt state of mind, and I don’t know where they’re going to find that evidence from or at least prove it beyond a reasonable doubt. But I just think this indictment may not stand up to a facial challenge. I mean, I could envision a motion along the lines of just fails to state a crime sort of thing because the evidence doesn’t match up with the allegations in the indictment.

Preet Bharara:

I mean, if you’re a layperson, ask yourself the question, would this case have been brought but for the pleading and direction and pressure of the sitting president of the United States? No. No. And that’s not only relevant to these motions that we’re talking about, it’s also relevant to the question. The ultimate question is this the kind of country you want to live in? We’re notwithstanding the ordinary process, notwithstanding DOJ values and norms, notwithstanding ethical obligations and rules for members of the bar, notwithstanding particular regulations, ethical norms and rules of discipline for prosecutors.

Notwithstanding all of those things, a president of the United States can overrule all of that. And I understand the unitary executive theory and we can talk about that if people want, but you want to live in a country where that guy, Democrat or Republican, next time it’s going to be a Democrat, can decide, I’m going to short-circuit all the process and I wanted my political adversary in prison, I want him in prison. And if my own people are not going to do it, I’ll find another one of my own people who used to represent me personally to make sure that guy goes to prison. Ask yourself if that is rule of law, ask yourself if that’s law and order, ask yourself if that’s what you want in this country. You don’t have to be a legal expert, you do not have to have gone to law school to know the answer to that question.

Joyce Vance:

I mean, isn’t that just the definition of living under an authoritarian regime? I wrote earlier this week and it keeps popping back into my head about this comment that’s widely attributed to Beria, the head of Stalin’s Secret Police, where he said, “Show me the man and I’ll show you the crime,” which is what this feels like. And so I think to your point, this is an overt effort by this president to intimidate voices of opposition. Ultimately, this indictment says a lot more about Donald Trump than it says about Jim Comey.

Preet Bharara:

We’ll be right back with more of my discussion with Joyce Vance after this.

So this is maybe a moment where we should talk about what the Trump supporters will say and what they say, the MAGA folks. And they will say to you, Joyce, I’m going to inhabit that persona for a moment. Clutch your pearls, Joyce, cry your stupid tears. Ha ha ha. The chickens are coming home to roost. You indicted the former president five times, you, whoever you is, and we’ve talked about this you thing before, you impeached him twice, you tried to send him to prison. So F you and your pearls and your crocodile tears. You did this to our guy, he’s doing it to your guy. The same people who used to complain about the silliness and unseriousness of process crimes are saying, “Hey, you Democrats, you set the playbook. You set the playbook, you have to live by the consequences of the playbook that you created.” How do you answer that?

Joyce Vance:

Yeah, I mean when you and I talked this morning, I thought you had a couple of important points. One, you reminded me that if you’re explaining, you’re losing, right? MAGA speaks in bumper stickers, and some of these concepts are difficult to explain them. So I think we have to find a way to do it efficiently and effectively. And perhaps here, the best way to explain it is these two things are not like each other. Joe Biden never directed his attorney general to indict Donald Trump or anyone else. In fact, he stood so far back from that process that Merrick Garland appointed a special counsel who took over that entire process, made those decisions independently.

Joe Biden’s administration didn’t involve a president telling prosecutors what to do, but Donald Trump, not only are there these tweets, he gets on TV last night or he’s maybe asked questions and he says, “Well, I think I could get involved in the conversations about this case, but I choose not to,” which both tells you where his mindset is, but it’s also BS because he’s DMing Pam Bondi on Truth Social, telling her what to do.

Preet Bharara:

There’s this sort of rhetorically, I guess, clever method used by what I’m going to call the radical right, and the MAGA folks, that is very effective, and that is using the pronoun you, saying you did this or they did this, and conflating all sorts of things. So if one person commits one heinous crime, it’s everyone who’s… the Democratic Party is a terrorist organization and they get away with that. And here it’s even more complicated than that.

You can have a critique. Lots of people, by the way, who are Democrats have been good faith critiqued the Alvin Bragg prosecution of Donald Trump. You and I have critiqued a lot of the things that Fani Willis did in Georgia. There are critiques that are in good faith that could be made against Jack Smith, the independent counsel who accounts for two of the other charges against Donald Trump. The difference is those are independent actors, and I know some conspiracy theorists, assuming if you believe that Tylenol causes the problems that it causes, then maybe there’s no hope for you. Notwithstanding all the evidence.

But in it infects legal discussion and legal analysis as well. Those are different things, right? And as you point out, Joe Biden, it’s sort of quaint to think about Merrick Arland who went out of his way, I guess, to try to provide some comfort to the public that these decisions were not coming from the White… Literally, why was Jack Smith appointed? So there would be some distance and arm’s length that could be reasonably suggested to the public that Joe Biden wasn’t doing what Trump is doing now. And by the way, the proof in that is not only did Jack Smith get appointed to investigate Donald Trump didn’t come from Joe Biden, but Robert Herr special counsel got appointed to investigate Joe Biden himself. And another guy from Maryland, I’m sorry, from Delaware, got appointed to investigate the President’s own son. Now, later he pardoned Hunter Biden. That’s a separate issue.

But on these prosecutorial decisions, the MAGA people who keep complaining and talking about your crocodile tears and my clutched pearls, there is no evidence at all that Joe Biden directed any of that. He stayed out of it. And you can complain about what the special prosecutors did, what Fani Willis did, what Alvin Bragg did, they didn’t do this. And I can live in a country where, whether it’s on the Republican side or the Democratic side, individual prosecutors can be criticized and stymied and you have a right to appeal.

And the Letitia James case, Donald Trump appealed you and I talked about how maybe that money judgment was… We, who are not Trump supporters, who are just people who would try to interpret the law, try to call it like we see it. We didn’t say that was a brilliantly conferred money judgment. And you fight those things and you live to argue in court another day. That is very different from the president of the United States, the commander in chief ordering with all the resources that he has to order these things against political enemies. And by the way, this is just the first of many. There’s a list and he’s going down the list one by one by one and you know he means it now. That’s why I think this is the Rubicon.

Joyce Vance:

Yeah, I mean Donald Trump has apparently been on TV this morning and he was asked, now that Comey’s been indicted, who’s next on the list? And he responds, “It’s not a list, but I think there’ll be others. I mean, they’re corrupt. These were corrupt radical left Democrats.” So now it’s open season on half of the country. He signs this executive order yesterday that suggests… Well, and two days in a row, right? There’s the Antifa one and then there’s the one yesterday sort of criminalizing the status of being an opponent of this president in today’s America. Can I just say something? I’m not sure that I’ve ever heard you, I mean you’re so thoughtful usually, and so careful.

Preet Bharara:

I haven’t cursed yet. I haven’t cursed once yet.

Joyce Vance:

Well, that’s true, but I mean you are rigorously critical. You never let yourself get carried away by politics. You try to ground your decisions in the law. And I hear so much outrage and really sadness from you and from others of our former colleagues about this incredible, incredible moment that I don’t think any of us ever fully anticipated, a president openly and notoriously telling the Justice Department to go after his enemies. Like if Nixon had done this, it would’ve been all over in a heartbeat. Trump is doing this and Lindsey Graham goes on TV last night and defends him. Lindsey Graham, a former prosecutor, goes on TV last night and defends it. And I got to say, I’m angry finally at our former colleagues and folks in the Republican Party who lack the spine to stand up and condemn this, they are complicit in the destruction of American democracy. No matter when the Rubicon was crossed, it is on them to stand up right now and do the right thing. And I do not believe that they have it in them. Prove me wrong. Ted Cruz, prove me wrong.

Preet Bharara:

Well, we’ll see how it unfolds. Let’s talk about the case. That’s usually how we would begin. But I think the surrounding circumstances are in many ways a bigger deal because of what it says about the rule of law, what it says about complicity, what it says about our path forward. So as I told you, I had printer problems. Could you just, it’s a very short indictment and count [inaudible 00:28:55].

Joyce Vance:

We call this a skinny in my district.

Preet Bharara:

Not a speaking indictment. We used to do speaking indictments, which not everyone loved. So count one is a false statement, right? Allegedly made by Jim Comey during testimony almost exactly five years ago. By the way, that’s why they had to rush because the statute of limitations is going to run on Tuesday, September 30th. And as you had pointed out in some of your writing, it’s not a thousand percent clear the particular statement, but there’s some details provided, and you’ll read it in a moment, of what the false statement is and then we can discuss what the evidence is on one side versus the other side. It says in the indictment, statements that Comey made in response to questioning by a senator. We believe that senator to be Ted Cruz. Could you just read the sentence or two?

Joyce Vance:

Yeah. So this is the false statement Comey supposedly made. He said he had not, quote, “Authorized someone else at the FBI to be an anonymous source in news reports.” And that’s regarding an unidentified person, Person 1.

Preet Bharara:

Okay. So that testimony that is the basis of the indictment is a reference back the testimony that Jim Comey gave in 2017 at a hearing when he was asked whether or not he… And again, I’m not using the precise words and the words matter. If you’re going to take… This is how false statement cases work. So now we can explain something to people who haven’t done this. Maybe Ms. Halligan will pay some attention as well. The words matter. Whether the word was approved or authorized or what had happened. Was it before the fact? Was it after the fact? If you’re going to go to court and you’re going to argue the elements of false statement and you’re going to try to take someone’s liberty away, you can’t just sort of be casual like you are in a talk show and say, “Well, he said he didn’t do it and he did.” That’s not how it works.

And Jim Comey in response to the questioning from Senator Cruz simply said a couple of times when asked the question about the authorization of a leak, said a couple of times, “I stand by my testimony from before.” On the one side of the ledger is Jim Comey saying, “I didn’t authorize a leak.” Right? That’s on the one side. Do you want to describe what’s on the other side of the ledger? Whose testimony apparently the government, and again, a caveat, we don’t have all the information, we don’t know what other stuff has been unsealed or declassified. What we do know is the reporter to whom the leak was made is almost certainly not going to be able to be a witness. And we also know that the actual leak, this is not a case where Jim Comey is accused of lying about leaking. He’s accused of lying about authorizing a leak.

The leak, as I understand it, and I could be wrong, but as I understand it, tell me, Joyce, if you agree, the leak was conceitedly done by Andy McCabe, at one point the deputy director of the FBI, and the whole case sits on whether or not Jim Comey was lying when he said he authorized Andy McCabe leaking some information. By the way, just as a side light, notwithstanding all the argument and the yelling and screaming and anger about Jim Comey and the Russia hoax, as they call it, what’s this lie about? Was it a harmful and damaging leak on the Russia hoax about Trump? That must be what it is, right? Because that’s why they want to go after Comey because this crime in some way hurt Donald Trump. Am I correct?

Joyce Vance:

Yeah, I know you’re setting me up here, right? Because no, actually it was damaging to Hillary Clinton who’s presumably one of these anonymous people.

Preet Bharara:

Oh, does this [inaudible 00:32:38] damage to Hillary Clinton?

Joyce Vance:

Yeah.

Preet Bharara:

Oh, that’s a nice bank shot.

Joyce Vance:

Right?

Preet Bharara:

So what’s on the other side? So Jim Comey says, I didn’t authorize the leak. What’s the evidence on the other side?

Joyce Vance:

There’s so many different threads here that you want to pull because this is just so insanely not the stuff of an indictment, but I think what you’re looking for here, and maybe the best place to start is it looks like the evidence against Jim Comey would have to be comments made by Andy McCabe. And of course there’s been an Inspector General’s investigation into that, which I will inelegantly call just a pissing match between the two of them. Their testimony, their recollections were different.

And it’s worth putting a pin in that, right? Because to prove these cases, you would have to establish for this first count, the false statement that Comey knowingly made a false statement, and for the second count, the obstruction count that he did it with a corrupt state of mind. Sometimes people’s recollections just vary, right? This is one quick exchange in one very busy day in an FBI director’s years of busy days. So who knows what the government has on state of mind, but I guess their best evidence is they’re thinking Andy McCabe is going to go testify. I know that there was another agent who was summoned to grand jury and there was reporting that his testimony was not helpful to the government. So I guess that’s the case.

Preet Bharara:

We’ll be right back after this. So on the one side, as far as I can tell, as far as we can tell, you have Jim Comey saying, “I didn’t authorize a leak.” On the other side you have Andy McCabe saying something that the government contends contradicts that. You have an IG report that says, and by the way, Andy McCabe is also a longtime friend of mine. I know Jim and I know Andy. The inspector general report literally says, and I don’t have it printed out-

Joyce Vance:

I have it in front of me.

Preet Bharara:

Literally says that on this point, the point that I believe is at the crux of this two-count indictment and at the absolute center of count one, that the more credible party on this issue of the leak to the Wall Street Journal is which one?

Joyce Vance:

You know it’s Comey. The IG report says, “We concluded that McCabe lacked candor.” So now imagine Pat Fitzgerald cross-examining also his old friend Andy McCabe, and using that to cross-examine the witness.

Preet Bharara:

Yeah, it gets worse. It gets worse, right? This is how it will work. And by the way, this is you and me talking off the top of our head, not having all the information and looking at the indictment and looking at other things that are in the public record. And you can drive a truck through the theory on the merits, putting aside the vindictive prosecution, putting aside the selective prosecution, putting aside the violation of ethics, putting aside whether or not there was exculpatory information in front of the grand jury. On the merits of the case, what is it that Andy McCabe, as I have read his testimony, what is it that Andy McCabe says about the leak?

He does not say, “I asked Jim Comey, may I leak this, and he authorized it and then I leaked it.” On every view of the evidence, Andy McCabe said after the fact, after McCabe, I think this is right, after he leaked the things to the Wall Street Journal, he advised Jim Comey. And the question is, you’re going to send a guy to prison on the ground that he says he didn’t authorize the leak when it doesn’t look like he authorized the leak. Even by Andy McCabe’s own testimony, it’s after the fact. Am I missing something?

Joyce Vance:

Unless there’s evidence we don’t know about, and the inspector general didn’t know about, there’s no dispute on this point, right? I mean, there’s no testimony that Comey knew beforehand. An authorization to me implies you knew beforehand and you blessed it. This squabble is about whether or not Jim Comey was paying attention when McCabe, according to McCabe, comes in after the fact and says, “Hey, I did this.” And did Comey say, “Oh, that’s good,” or was Comey paying attention to something else and doesn’t recall that it happened?

And look, there’s also another weird little thing buried in here, which is anonymous source might mean one thing to journalists. I think it’s a term of art as the FBI uses it. And so I think it’ll be, and I’m just not fully up to speed on that, I don’t have an FBI agent’s bible, but I think that there might also be a quibble about that, about anonymous sourcing. And then of course, as you point out, they’re not actually indicting Comey for his actual comments, which are well-passed statute. They’re using this sort of statute of limitations extender question from Ted Cruz. And they’re stuck, by the way, with the language of that exchange, right? That’s the false statement Comey is alleged to have made, “I stand by my earlier testimony.” I think there’s just layer upon layer of problem here.

Preet Bharara:

It’s really hard. And by the way, so I worked in the United States Senate as a staffer, and so I saw a lot of hearings and I saw a lot of people actually try to dissemble or deflect. And there were times when I believed that a particular witness was going to lie or did lie. And the questioning on the part of these esteemed statewide elected officials, many of them lawyers by training, they have not been in the courtroom for a long time. Some people can hear, some people can’t. For a long time, did not ask the question as pointedly and as rigorously as you might want to ask the question, right? They think they’re great, but the purpose of a Senate hearing is not to establish the elements of a crime, it’s to do a lot of things, and sometimes it’s to generate heat, not just light.

And Ted Cruise, Harvard educated lawyer that he is, did not ask the questions in the way that I think provide for a viable false statement prosecution here. If you go back and look at the questions that he asked, he says, “This can’t be true and that can’t be true.” And Jim Comey, who’s a pretty experienced person as both a witness to testify and otherwise, as someone who’s asked witnesses, thousands of witnesses questions over the course of his career, didn’t try to restate his testimony, as you point out. He said, “I stand by my earlier testimony.”

And he did not attempt to separate the difference between approve the leak or did the leak or authorize the leak. And some people might think this sounds like semantics, but that’s a lot of what a criminal case is about, really, really specific meaning and understanding and the benefit of the doubt, right? The benefit of the doubt on whether a word meant this or that goes to the defendant because you’re the presumption of innocence and you have the rule of lenity and you have all sorts of other principles whereby if there’s some… Remember, because literally the standard is beyond a reasonable doubt. And as I see it based on the facts that we have before us, there’s a lot of reasonable doubt and more than reasonable doubt that Jim Comey intended to lie. And then these other points that you make about whether it was material and then the other elements are also in question. Wrong or right?

Joyce Vance:

Yeah, lots of reasons to dismiss this case either before it gets to a jury or while it’s in front of a jury when double jeopardy has attached. I think something we haven’t talked about is if you go on PACER and look at the case files.

Preet Bharara:

People who don’t know what PACER is, what’s PACER, Joyce?

Joyce Vance:

Say again?

Preet Bharara:

What’s PACER?

Joyce Vance:

PACER is the court’s electronic filing system where lawyers frequently have accounts and can go pull up all the pleadings. So that’s how I get the indictment last night, and I notice hmm, there’s a missing item two. And so I clicked on the little dot that gives you a brief description of item two, and it appears that the grand jury has declined to indict on one count in the proposed indictment. I mean, it’s not certain, grand jury practice is always murky from the outside.

It looks like the grand jury refused to issue an indictment on a perjury count, which goes to your point about specificity. I would think that that would be a likely failure. And so as you say, and I’m not being critical of Ted Cruz, I don’t think he was trying to use the specificity necessary to invoke a perjury charge, but in that indictment you’ve actually got to quote the exact language, and it has to be beyond a reasonable doubt because a tie goes to the runner and in criminal prosecutions, the runner is the defendant. It has to appear beyond a reasonable doubt that they knowingly lied about something that’s material. Those are a lot of bells that the government has to ring based on this just really innocuous conversation. We haven’t really focused on materiality, but I think they might have a failure there too.

Preet Bharara:

And you know what’s going to happen if there’s a trial, and Comey has said, and I believe him, by the way. I mean he’ll make the motions, but if they don’t succeed, let’s have a trial. Do you know what’s going to happen at this trial that often usually does not happen at a trial, at a criminal trial?

Joyce Vance:

What do you think will happen?

Preet Bharara:

100% James B. Comey is going to testify. 100% or 99%?

Joyce Vance:

If the case gets that far. I mean’s there’s a caveat, right?

Preet Bharara:

If there’s a trial, if it goes to trial and it’s Patrick Fitzgerald for James B. Comey defendant, United States versus James B. Comey, I predict Jim Comey will testify, and if people don’t realize what a formidable witness he might be, they got another thing coming. Particularly when you have all these flaws and gaps in the prosecution’s argument

Joyce Vance:

At the close of the government’s evidence in a criminal case, defense lawyers usually make just a pro forma motion saying that the government has failed to provide enough evidence and that the counts should be dismissed. The only thing that would keep Jim Comey off of the witness stand at trial would be if the case gets dismissed at the close of the government’s evidence before he has the chance to do that.

Preet Bharara:

Yeah. Look, I think there’s a lot of possibilities. Now, I will say I don’t know and I have no inside information or knowledge, I’m just totally, this is total conjectured that a part of Jim’s brain, and I’m not saying this is a legal argument, and he’ll listen to his very smart lawyer, that a part of his brain is probably saying, “You know what? I don’t want to get it dismissed on some other ground so people say it was a Democrat-appointed judge who got me off on a technicality.” Because that’s what people are going to say. It will be horse shit, but that’s what people… Oh, I cursed first time, 47 minutes in.

But that’s what people will say, and there’s a part of his brain, I guarantee you, that is thinking more psychologically than legally. I’m going to go to trial and put myself in the hands of 12 American citizens and see what they think and be vindicated at trial. That’s why he said, “Let’s have a trial.” And he wanted to say, “I’m not afraid of a trial,” and he shouldn’t be afraid of a trial, and hopefully Pat Fitzgerald is charging him a good rate. But it’ll be interesting to see how people react and conjure up their own convenient narratives when justice is done by dismissal of this before trial or the case is dismissed at the conclusion of the government’s case, all of which are viable and probably meritorious conclusions to the case.

Joyce Vance:

So I don’t disagree with you that that was clearly what Comey was thinking about when he spoke last night. That’s why you get a good lawyer like Pat Fitzgerald who will, I suspect, walk back from the emotion and try to have a conversation with his client about making every motion, preserving every possible error. The one thing that you might do is ask the judge to take the motions under advisement and not rule until the trial has concluded. I suppose you could do that. I don’t know if Judge Nachmanoff would be inclined to go along and then let the jury render its verdict. But of course if the jury convicts and then the judge grants your motions after trial, that’s not the result you want either. So I think what Comey may emotionally want may well be at war here with smart legal strategy.

Preet Bharara:

Could we just go back to this point that just bothers me as a person like you who’s in the public square and in good faith wants people to understand arguments and wants to persuade even the unpersuadeable, right? The folks who say, the pearl clutching point I made earlier, that this is the same thing. It’s in fact not only not the same thing, it’s the opposite thing. Not only is it the case that President Biden didn’t order the prosecution of his political adversaries, not only did he appoint a special counsel, he did all of that according to the norms and policies of the Justice Department. So that’s what he did. If you had to conjure what is the exact opposite way to behave for a president of the United States from appointing… I’m sorry, allowing his attorney general to appoint an independent counsel to investigate not just his adversary but himself and his son, the literal opposite of that is to do what Trump did, which is to remove his own people and order the prosecution of people that are antithetical to him and adversaries of his.

So his whole idea, that it’s the same thing, you did this to us is actually completely, completely turned upside down. Whether anybody will believe that or buy that, I don’t know because increasingly people have a view that the right way for something to come out and to decide whether they agree with something or not is with the outcome. Not about process. We’re going to run out of time in a few minutes. It may be worth talking, going back to sort of where we began, then we should also talk about how this is going to unfold, and maybe about the judge for a minute.

Justice is not about outcome. The Constitution that we are supposed to hold dear does not say, “This is the amount of money you can make in your lifetime.” It does not say, “This is what your guaranteed income is.” Other constitutions do that presumably elsewhere in the world. This one is about process. The word process is maybe the most important word in the Constitution, right? Due process. As people have pointed out, the word democracy, I don’t believe is in the Constitution, but the word process is and due process is.

And the thing that keeps us free, and people like to talk about freedom and people on the right and the left both like to talk about freedom. The thing that keeps us free is not the bombs, it’s not the missiles. I mean obviously those preserve freedom in some way, but it’s the adherence to the constitution and the process that it guarantees for people. And if the process is perverted and the process is obstructed and the process is ignored or violated with malice as it has been in this case, then that’s not justice and people need to understand that. And that’s maybe too esoteric for people to put on a campaign slogan, but I believe that to be true, and without any of that, these other very important issues of the kitchen table, will end up taking a backseat. I believe that.

Joyce Vance:

Yeah, I think that’s right. And I think it’s the intersection of First Amendment rights with process rights, with due process, that’s maybe that fundamental cornerstone for the Constitution. So it makes sense of course for the president who wants to be an authoritarian would simultaneously attack both of those. And there’s a certain synergy that I think adds to the seriousness of the moment.

Preet Bharara:

Should we get off our high horse for just one minute and talk about how this is going to unfold? So there’s a word. Do people realize that the first district in which you ever practiced was the Eastern District of Virginia?

Joyce Vance:

I don’t know if they do, but I’m a Virginia Court lawyer.

Preet Bharara:

Now they do. Now they know. And there’s a term that was not applied to the Southern District of New York that is applied at the Eastern District of Virginia, and it’s the term rocket docket.

Joyce Vance:

It’s the first thing you hear as a young lawyer going into federal court in Virginia, right?

Preet Bharara:

Explain what that means.

Joyce Vance:

The notorious rocket docket, a court that moves fast and takes no excuses.

Preet Bharara:

So people are asking the question, how quickly could this go to trial? How’s that going to work?

Joyce Vance:

So arraignment is set for October 9. I think it’s really impossible to predict. I heard all sorts of predictions last night. The reality is on the 9th or shortly thereafter, Judge Nachmanoff will issue a scheduling order. There will be a time for discovery, that’s very fast in the Eastern District of Virginia, and the defendant’s lawyers will want every bit of discovery that they’re entitled to. There’ll be a time for pre-trial motions. We may even see a trial date scheduled. It’ll be fast. I don’t think it’ll be in November. But if Jim Comey’s really serious and he wants to go to trial and sort of wants to dispense with the preliminaries, it could happen maybe by the end of the year. That’s tough with the Christmas holidays, I think shortly after the first of the year is more likely.

Preet Bharara:

Do you agree that if you’re a lawyer for Jim Comey, you want to go to trial as quickly as possible? Because on the theory among other theories that the government is fairly flat-footed, it doesn’t have its ducks in a row?

Joyce Vance:

I think that’s very true here, right? I mean, so there’s this weird issue that the government has got to get all of its discovery together beforehand. This is one of the districts that requires a pretty quick turnover of discovery to defendants. And so in that sense, they’ve got all of their evidence together, but they’ve got a really runny case and they’ve got a young inexperienced trial lawyer who needs a team. So the more time you give them to compensate for their weaknesses, the more they’re able to do. And that too might sort of mitigate in favor of fast.

Preet Bharara:

A couple of questions people have been asking that are fair questions. Any chance of it being televised? I think the answer to that is no.

Joyce Vance:

No, not in federal court in the Eastern District.

Preet Bharara:

It’s no. And then a word on the judge. So I don’t know this judge, but I’ve asked around since last night. He gets very high marks for being a person of integrity and deep understanding of the law. His background is less common than many judges’ background. Many judges were former prosecutors like you and I were. He was a former public defender, I think head of the public defender’s office in that district, which is a position of great significance and prestige. Does that tell you anything about how this might unfold?

Joyce Vance:

Yeah. So as you say, Judge Nachmanoff was a federal defender for 13 years, I think, before he was appointed eight of those as the federal defender for the Eastern District of Virginia. And when Joe Biden was looking to appoint more diverse judges, that sort of expertise really appealed to him because there aren’t a lot of former defenders on the bench, and this was unique for this particular district.

But Judge Nachmanoff also spent four or five years as a magistrate judge before he became a district judge. In other words, this is somebody who’s well-rounded, has a great reputation as a very fair judge who moves his cases along. I think some judges are good picks for the government and for the defense because they’re just judges who understand that their job is to call the balls and the stripes and move the case along. And that’s the kind of judge I think we’ve got here.

Preet Bharara:

We went a lot longer than the usual 20 on Substack live. There’s a lot to cover. I look forward to seeing you on television. I’ll be on something this evening. Got to get back to-

Joyce Vance:

You’re on with Chris Hayes tonight, I think. Folks should watch that.

Preet Bharara:

I am.

Joyce Vance:

And we will of course have a conversation Tuesday about whatever we learn between today and Tuesday.

Preet Bharara:

Yeah, so let’s leave folks with two thoughts, quoting from Jim Comey’s own video, let’s have a trial unless it gets dismissed before that and keep the faith. That’s the most important thing. And this is a very trying time for a lot of folks. I’m feeling it very deeply, I know Joyce, you are too. And I hope that Jim Comey is right, that we should have continued faith and trust in the judicial branch even as it’s waning in some of the other places where we used to have faith in our government. Last word to you, Joyce.

Joyce Vance:

Thanks y’all for being here. Preet, this is, I’m going to steal Preet’s line and just say, stay tuned. There’s never been a more important time to understand what’s going on.

Preet Bharara:

Thanks for listening. We’ll have all the latest developments next Tuesday on the Insider Podcast. Don’t miss it. Become a member at cafe.com/insider or staytuned.substack.com. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #AskPreet. Can also now reach me on Bluesky, or you can call and leave me a message at 833-997-7338. That’s 833-99-PREET. Or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The Deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández and the CAFE team is Matthew Billy, Nat Weiner and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.