Trump Wants $230 Million & James Comey's Defense | Bloomberg Law
Summary
Legal Maneuvering: The Trump administration's appointment of Alina Haba as a US attorney is under scrutiny for bypassing Senate consent, raising constitutional concerns about the appointments clause.
Constitutional Implications: The appointment process used by the Trump administration is seen as a circumvention of the Senate's role, potentially undermining the constitutional framework for appointing superior officers.
Judicial Skepticism: Judges have expressed skepticism about the legality of Haba's appointment, questioning the government's justification and lack of precedent for such actions.
Trump's Legal Strategy: President Trump is seeking $230 million from the Justice Department, claiming damages from investigations into his campaign and post-presidential actions, highlighting potential ethical conflicts within the department.
Vindictive Prosecution Claims: Former FBI Director James Comey is challenging his indictment, arguing it is a result of vindictive prosecution by the Trump administration, raising issues of prosecutorial ethics and independence.
Ethical Concerns: The Trump administration's actions have raised ethical questions, particularly regarding the influence of political motives on legal appointments and prosecutions.
Impact on Legal Proceedings: The ongoing legal challenges and appointments may jeopardize the legitimacy of cases prosecuted under interim US attorneys appointed without Senate confirmation.
Transcript
This is Bloomberg Law with June Graasso from Bloomberg Radio. >> The usual question that a judge would ask is which, what, who is this person? What actual position are they serving? >> The Trump administration has given Alina Haba a string of job titles. She's been interim US attorney, acting US attorney, the first assistant US attorney, and special attorney. All in an effort to keep Haba Trump's former personal lawyer in the role of New Jerseyy's top federal prosecutor. And during oral arguments at the Third Circuit challenging her appointment, appellet judge D. Brook Smith questioned the unprecedented maneuvering by the administration. Would you concede that the sequence of events here, and for me they're unusual, we could recite them if you wanted to take the time. Would you concede that there are serious constitutional implications to your theory here, the government's theory, which really is a complete circumvention, it seems, of the appointments clause. A federal judge has already found that the appointment of Haba was done with a quote novel series of legal and personnel moves and that she was not lawfully serving as US attorney for New Jersey. The appellet judges seemed skeptical of the claim by Attorney General Pam Bondi's counselor Henry Whitaker that Haba's designation was consistent with long-standing practices of the Justice Department. And Judge D. Michael Smith pressed Whitaker to provide examples of similar US attorney appointments, which he couldn't do, >> and told us numerous times how how common practice has played into this. And I don't care about dates. I don't care about n names. uh can you come up with an example of any time that such a concatenation of events has occurred with respect to the appointment of a United States attorney? Well, I guess I cannot but I guess I would say that what what that series of precise and precisely timed events is not in substance from what the executive branch has done in other contexts, analogous context. My guest is constitutional law expert Harold Krent, a professor at the Chicago Kent College of Law. So, how several people charged with federal crimes in New Jersey are challenging Haba's authority to lead the US attorney's office there. Tell us about the arguments they're making at the appellet court. Well, let's take a step back. I mean, the appointments clause provides that the president must appoint all superior officers of the United States subject to consent by the Senate. So, the question here is that Hava we know is a superior officer. She's the US attorney. That's been decided before superior officer. So, the president importantly gets to fill that position. But there must be Senate consent. And for whatever reason, the president has tried to circumvent the Senate's power to give consent to Hava's position. So that's the the legal structure. What's happened along the way is convoluted, but there is a another statute called the vacancies act which says that the president can appoint certain individuals for a limited period of time if the position is vacant and thereby can get rid of the Senate consent requirement just for that to fill the vacancy until there's time he can make decision and decide who should fill that post. So he did appoint Haba in that direction. The time period lapsed and under this congressional statute the first assistant who was like a career officer is then to fill that position again only until the president decides who he wants to fill that office subject again to Senate consent. And so the first assistant under the statute took over office after Haba's time period was over. But then she was fired and she was fired because then President Trump wanted to put Hava in as the vacant first assistant so she could continue her tenure and continue to avoid the need for Senate consent. So the president here has snubbed his nose at the Senate continuously. He's done an endun around the appointments clause. And so that's the situation we're in that's now being challenged by several criminal defendants who are now appearing in that um jurisdiction. >> One of the judges, D. Brook Smith, called it a concatenation of events. The government's attorney said this was consistent with the long-standing practice of the Justice Department, but he couldn't point but he couldn't point to any similar situations. >> Yeah. I mean what the government can argue they really have very limited arguments um is that each step along the way may have some kind of precedence right there clearly a first assistant can fill the position until the president appoints a replacement but there's never been a situation before where they fired the first assistant so that they could put in the person who previously had the position um in so that they can continue being in an acting position without the necessity of senator torial consent. So clearly this is like taking little steps and the justice department has to admit this is circumventing the Senate's consent authority and so the court is then left with the question of like okay each little step along the way maybe has some kind of antecedance or historical practice. But anybody looking at this could say the president is trying to sty the senate's important role under article two of the constitution. Also, at one point, federal judges in New Jersey declined to keep her as the top prosecutor, >> an alternative mechanism which allows judges to appoint interim US attorneys. Uh so there's like two different routes, you know, one is sort of through the first assistant that we talked about before. Another is they can be triggered that the court say, "Oh, there's a vacancy here. We have to do this." the court rejected Aba as as being not competent enough, not experienced enough. And so that just again heightens the the fact that this is a showdown that Trump is insisting on, you know, not getting many favors, but so far he's been able to keep Ahaba in position. One of the judges repeatedly suggested that one of the key laws at issue in the case suggested that Congress wanted unconfirmed acting top prosecutors to be career prosecutors rather than political picks. >> Yeah. So the idea of a first assistant being able to take over temporarily, not for permanence, but is the idea that you want to have someone with knowledge and experience to fill that position as a temporary head of a vacant office. And obviously by firing the first assistant and then naming Haba as first assistant, the Trump administration was under cutting the congressional goal of having an somebody experienced to act as an officer until the president can get confirmation from Senate. I wouldn't take that argument too far because I think President Trump can appoint someone who is incompetent into that office and then just have the question of whether the Senate is going to consent or not. So that that I think is not a bar to the president appointing Haba. But nonetheless, the idea of the first assistant is to ensure that someone with experience and perspective take over the position on a temporary basis. And that couldn't happen because of the intervention of the Trump administration. >> The Trump administration had a fallback position that regardless of other statutes, Pam Bondi, the US attorney general, could delegate powers of a Senate confirmed US attorney to Haba for a period of time. >> That fallback has never been tested to my knowledge. And it seems like again like a circumvention of the vacancy act. Congress has been very clear what should happen if there's a vacancy and I agree that there is ability of officers in the administration Trump administration to delegate their own duties but this is not Bondi's own duties this is duties that are subscribed to a US attorney and that congress has set up by creating the office of US attorney so I don't think the fallback is actually going to going to work here at all and in face of the clear steps that I mean the convoluted steps But the steps that Congress has set out in the vacancies act, you know, I think that the Trump administration is going to have a hard time persuading the court that what it did here with Haba's nomination and then renomination is going to pass muster. >> I mean, if you take it from what happened in the oral arguments, it seemed like the judges were questioning the government's move. One judge called it a complete circumvention, it seems, of the appointments clause. So assuming that the third circuit says her appointment was not lawful, the Trump administration will take it to the Supreme Court, is there any indication what the Supreme Court would do? Have they handled anything like this? >> The vacancies act um I've always found to be very convoluted. It is. And you know, I think the court will not be fond of dealing with the the intricacies of the vacancies act either. You know, the whole thing is this is just a I hate to use the expression, it's a trumped up um legal issue because all that Trump has to do is a pointer and let the chips fall where they may and that's what's supposed to happen under the Constitution. So, I think that the Supreme Court would be somewhat reticent to take the case and somewhat resistant simply because of the fact that the options for President Trump to cure this is just a pointer and his refusal to do this is causing this legal morass. Can he appoint her if the New Jersey senators refuse to give a blue slip? >> I think he can. I think that's that's kind of a senatorial privilege, but it's not in the Constitution. And so I think that the president would be on strong ground and saying yes, there's a long cherished, if you will, tradition of having the senators agree on appointment, but that's not in the Constitution. And so I think if President Trump said tradition, you know, be done, um, I'm going to appoint Haba. Personally, I think he could probably do it. The Haba case isn't an isolated incident. A judge in Nevada last month ruled that Nevada's acting US attorney was unlawfully installed to her role. And we have FBI Director James Comey filing motions to dismiss the charges brought against him by Lindseay Hallan. Is the Trump administration putting all the cases that are being brought or litigated during these terms in jeopardy with, you know, continuing to hold on to these temporary acting interim US attorneys? >> Absolutely. I mean, I think the Trump administration is acting, you know, needlessly and heedlessly because they could accomplish its goals more directly by ensuring that the Senate go back into session, which has its own problems, I understand, but just making appointments and getting senatorial consent, which is clearly the constitutional designed methodology. So they're creating a host of headaches for appellet courts and then later for the Supreme Court and they're jeopardizing some of their goals in terms of prosecution of Comey and others. >> Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Harold Crank to the Chicago Kent College of Law. We'll tell you about Trump's ask of $230 million for compensation for past investigations of him by the Justice Department. about. Yeah, they probably owe me a lot of money, but if I get money from uh our country, I'll do something nice with it, like uh give it to charity or give it to the White House while we restore the White House. >> I'm June Graasso and you're listening to Bloomberg. How Let's turn to another legal issue involving President Trump. He's suing his own justice department for $230 million in compensation related to the investigations into whether his campaign colluded with Russia in connection with the 2016 election and his postpresidential retention of classified documents. The New York Times first reported that, but Trump has basically confirmed it with comments in the Oval Office. I mean, we have numerous cases having to do with the fraud of the election, the 2020 election, and because of everything that we found out, I guess they owe me a lot of money. >> This is yet another time when I'm going to use the word unprecedented. So this is the most on the one hand amazing hutzbah or hubris that any of us have seen because what the president is saying is because the former administration investigated my actions with classified documents investigated my role in the Russia supposed influence of the 2016 election that they've committed tors. They've committed tors against me, violated my privacy rights, malicious prosecution, and therefore because of those tors, I can recover under the federal tort claims act. Federal Tor claims act is a government's waiver of immunity from tort suit in particularly defined circumstances. And under the federal tort claims act, before you can sue in court for a tort, you can file an administrative claim before the agency that one asserts caused the individual harm. So what this is is an administrative claim preparatory to a potential federal claims act lawsuit saying that I was injured by tors through this investigation in both these two contexts. And why this is so unbelievable is then it's the justice department that gets to decide whether to pay the claims or not. so that people he can fire, his own former personal attorneys, then will sit on this issue about whether he deserves compensation. So there's no court review, there's no public review. This is insider. It's like opening up the treasury. Let me scoop out as much as I want to help out my family. That's what this is in essence. And it's just outrageous. But let me also say that what's amazing about this that I'm sure the president hasn't considered is this is opening up the same process for those who've been injured by ICE. Because what people are saying is the only type of compensation allowed will be for people to go before the federal claims act and basically allege claims of brutality, false arrest, malicious prosecution, privacy rights invasions by ICE officers. And if I were defending those ICE officers, I would say, well, look, the president's done the same thing, almost the same theories. And if the president says we can use the federal claims act for his own purposes, then obviously people who've been injured by ICE officers should be able to use the mechanism despite the defenses in the federal claims act itself. >> According to the Justice Department manual, settlements of claims against the department for more than $4 million must be approved by the deputy attorney general or the associate attorney general. The deputy attorney general is Todd Blanch who represented Trump in his New York criminal case and in the Mara Lago classified documents case. And the associate attorney general is Stanley Woodward who represented Trump's valet and co-defendant also in the Mara Lago investigation. So the ethical issues are apparent. You don't have to be a lawyer to see them. But who's going to stop them? Not you or me. >> A Justice Department spokesperson said, "In any circumstance, all officials at the Department of Justice follow the guidance of career ethics officials." However, Attorney General Pam Bondi fired the department's top official responsible for advising the attorney general and the deputy attorney general on ethics issues in July. And there is no replacement. and and of course the most recent appointment individual had to recuse himself because of anti-Semitic and antilack sentiments that he articulated. So yeah, we don't have a top ethics official anymore. There there is just no break. There's no internal guardrail on this. It's a it's a smart move on Trump, but it's a disgusting move because it just shows the problem of having no type of separation or independence. And so I don't know whether President Trump will go through with it, but he actually could scoop millions of dollars from the US Treasury and deposit in his account based upon this administrative claim. >> And he knows what's going on because in in the Oval Office, he said, "I'm the one who makes the decision." >> And uh you know, that decision would have to go across my desk and it's awfully strange to make a decision where I'm paying myself. The problem is will we know when this happens or is it all internally done within the justice department? >> The actual payment has to be in a record. Okay. >> Um so there will be legally uh cognizable means to say whether or not this happened, but the deliberations don't have to be in public. So we're not going to get a sense of who said what. There's not going to be like briefs before a court. This is an internal decision by his uh deputy and associate as to whether and how much to pay him. Uh but we will know that taxpayer monies will be allocated to his bank accounts. And you know who knew that being president would be so profitable. This is just another you know ingenious way that President Trump is bound to line his own potentially line his own pockets at the expense of the American taxpayer. >> Unprecedented. I'll say it again. Unprecedented. Thanks so much, Hal, for joining me. That's Professor Harold Krent of the Chicago Kent College of Law. Former FBI Director James Comey has moved to dismiss the Justice Department's indictment against him, arguing that he was a victim of vindictive prosecution by President Donald Trump and challenging the appointment of the prosecutor who brought the case. Comey's lawyers argued that the appointment of former White House aid Lindseay Halligan to be interim US attorney for the Eastern District of Virginia was unlawful and that the indictment is a nullity because no properly appointed executive branch official sought and obtained it. Comey also argues that he was singled out and targeted for prosecution because he's been a vocal critic of Trump for years. My guest is Abby Smith, director of the criminal defense and prisoner advocacy clinic at Georgetown Law. Abby, tell us about his vindictive and selective prosecution motions. >> There are two ways to attack the charging decision of a prosecutor. But first, it should be understood that prosecutors have enormous discretion in deciding who to charge and what to charge. Even though as a matter of ethics under the rules of professional conduct, prosecutors are supposed to refrain from prosecuting a charge where there is no probable cause. And prosecutors are supposed to charge crimes, not people. But Comey doesn't get to rely on a critique of the Department of Justice's ethics. uh he has to mount a constitutional attack on his charges and there are two ways to do that. The first is by challenging the prosecution as selective and people tend to use selective and vindictive together. They're actually two different things and they're they rely on two different constitutional rights. Selective prosecutions prohibit prosecutors from prosecuting people based on an arbitrary classification. Usually selective enforcement has to do with prosecutions based on race or gender or ethnicity or something like that. But the constitution also forbids and this is as a matter of equal protection a prosecution that is based on an arbitrary classification. So race, religion, gender, ethnicity, those are the typical bases for a claim of selective prosecution. But it but there's this other phrase called arbitrary classification. And I think that's where Jim Comey lives. Here's the problem. I mean, there are many problems with a selective enforcement claim. First of all, because no doubt his lawyers are mounting this claim in order to get the case dismissed, it's not at all clear that dismissal is necessarily the sanction. I mean, it could be, and the stronger the claim, the more likely dismissal should happen, but the sanction is not a given, and it's a pretty demanding process. for the accused. And you know, often it's an unsuccessful challenge by the accused because in order to succeed under a selective prosecution claim, there needs to be a bunch of things that the defendant, Mr. Comey, can prove. first that he has been selected arbitrarily as a result of a you know a particular classification for him. I don't know what that classification would be called. Mr. Comey is was the director of the FBI and so he engaged in investigations that Donald Trump didn't like. I guess that would be his classification. So he has to he has to show that um that particular classification is not legitimate and it's not an investigation or a prosecution with a legitimate law enforcement purpose. The other thing that the defendant has to do is show that other people who have done the same exact thing weren't prosecuted. So it's sort of twofold. They're prosecuting him for his arbitrary classification, number one. And number two, similarly situated people have not been prosecuted. >> Well, Comey is pointing to four former Trump cabinet officials who he says were spared prosecution despite similar allegations. They lied to Congress. What about vindictive prosecution? >> So then there's vindictive and these two things are different and they're based on two different constitutional claims. So selective prosecution is an equal protection claim. Vindictive prosecution is a due process claim. And you know, a prosecutor initiates a prosecution or increases charges in an already existing prosecution in retaliation generally for a defendant exercising some legal right. Like a typical case of vindictive prosecution would be in states that have a kind of two-step denovo process where the very first trial is a bench trial and then if a person is convicted at the bench trial, they can seek a jury trial. If the defendant was charged with misdemeanor assault at at the bench trial and as a result of the defendant asserting his right to a jury trial, the prosecution then decides to charge him with felony aggravated assault. That's the typical example of a vindictive prosecution. It needs to be retaliation for a specific action taken by the defendant. So for Mr. Comey, here's the thing. It feels vindictive. It feels that he is being prosecuted only because he is, you know, one of apparently many people who are now on what can only be called Donald Trump's enemies list. Is there another reason for the prosecution aside from a vindictive one is the question for a vindictive prosecution. You know, is this a crime that needs to be prosecuted or is this so clearly retaliation? And you know, it's hard to figure out prosecutorial motive. For a vindictive prosecution, I I think the motive is much more a part of that claim. For selective prosecution, you're sort of looking at proof of kinds of crimes, people who are prosecuted, people who are not. Both things are really, really hard. A typical example of selective prosecution challenges were kind of the crack cocaine, powder cocaine prosecutions and the sentencing for crack cocaine because it was so much more of a black person's crime than a white person's crime. But those challenges were not especially successful. This is really novel. It's what we would call in the law sue generous. At least in my lifetime and I've been practicing law for more than 40 years. I can't think of an example that is at all analogous to the prosecution of James Comey. You know, it's not that previous heads of the FBI were perfect human beings and acted, you know, with absolutely no motive other than law enforcement, right? We all know a whole lot more about Jay Edgar Hoover than maybe we did at the time. But, you know, I can't really come up with an example that feels at all like the Comey example, nor can I come up with an example that feels like Leticia James. >> My question is too, so you're looking for the prosecutor's motive here. The motive is coming from the president, >> right? >> So, can they attribute the president's vindictiveness to the prosecutor? >> Okay, that's a great question. Um, I think here you can because there's some data to support that the attorney general of the United States does Donald Trump's bidding. Period. End of story. That, you know, Pamela Bondi has offered zero resistance from what any of us can see. Now, of course, we don't know what happens behind closed doors, but you know, when prosecutors are being fired for not doing the president's bidding, and they're being fired by Pamela Bondi and then substituted with somebody who's willing to do the president's bidding, I think it's fair to say Pamela Bondi is a surrogate for Donald Trump. I mean the reason that I can't come up with any, you know, analogous behavior is I mean not in my lifetime and certainly not since Watergate has any president used the Department of Justice as his own law office. The Department of Justice has a long history of independence and that was sharpened in the aftermath of of Watergate. And so, you know, it's very hard to come up with an example. You know, my free association would be to go back to John F. Kennedy. His brother was the attorney general of the United States. His brother certainly had a beef with any number of people, including J. Edgar Hoover. But there were no prosecutions that were clearly the result of an agenda that was based in animists. I don't think. Can you come up with >> No, I can't. No one seems to have come up with a a good example of this. What about his other claim that, you know, Lindseay Halligan wasn't properly appointed to the role? >> I think those claims are really interesting and they're happening not just with Lindsay Haligan. I hate to be hopeful, but I feel somewhat hopeful about these kinds of pre-trial motions being filed by people like James Comey, Leticia James, and so on. He's in front of Michael Knoff. I could not be better casting for the defense. Michael Knoff was the chief federal defender in the Eastern District of Virginia. He's a really smart and able guy and a courageous guy. The last time there was a government shutdown, it had a direct impact on all the federal public defender offices across the country. And Michael Knoff played a leadership role. I mean, he's a really smart and able guy. And he's the kind of judge who will say this has never happened before, but if arbitrary means anything, it lives in this case. You know, if there could be evidence of a vindictive prosecution, I think he's the kind of judge that would find it in this case. And I have to imagine too, you know, Comey's lawyers are all a bunch of former federal prosecutors. So very smart and able and they will present a pretty good case. They're not William Kunler. I mean, they're going to present a very lawbased case. >> And Comey is beefing up his defense team even more. He recently hired veteran appellet litigator Michael R. Dbin, who was formerly the Justice Department's deputy solicitor general, as well as Rebecca Donleski, a former chief of the public corruption unit at the US Attorney's Office in Manhattan. >> Yes, he has. It's got to be incredibly costly. And you know what? It's scary. Once a person is being prose, they're scared. They're like any other client of mine. It doesn't matter how powerful they are in the world. It's scary because somebody is threatening them with a prison sentence and forcing them to get counsel and forcing them to basically, you know, defend their reputation. So, you know, it's a big deal. And that's the ethics are essential for prosecutors. You know, prosecutors have so much power. They're not supposed to wield it as if it's nothing. Ethical rules say in the very first comment following the rules, a prosecutor has the responsibility of a minister of justice, not simply that of an advocate. They're supposed to be restrained. They're supposed to care about procedural justice. But if this is not selective prosecution and if this is not vindictive prosecution, I honestly don't know what ever would be. What's the point of having those challenges if this does not meet up with them? >> We'll have to see what the government's answer is to Comey's motion. Thanks so much, Abby. That's Abby Smith, director of the Criminal Defense and Prisoner Advocacy Clinic at Georgetown Law. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcast, Spotify, and at www.bloomberg.com/mpodcast/law. And remember to tune in to the Bloomberg Law Show every week night at 1000 p.m. Wall Street time. I'm June Graasso and you're listening to Bloomberg. [Music]
Trump Wants $230 Million & James Comey's Defense | Bloomberg Law
Summary
Transcript
This is Bloomberg Law with June Graasso from Bloomberg Radio. >> The usual question that a judge would ask is which, what, who is this person? What actual position are they serving? >> The Trump administration has given Alina Haba a string of job titles. She's been interim US attorney, acting US attorney, the first assistant US attorney, and special attorney. All in an effort to keep Haba Trump's former personal lawyer in the role of New Jerseyy's top federal prosecutor. And during oral arguments at the Third Circuit challenging her appointment, appellet judge D. Brook Smith questioned the unprecedented maneuvering by the administration. Would you concede that the sequence of events here, and for me they're unusual, we could recite them if you wanted to take the time. Would you concede that there are serious constitutional implications to your theory here, the government's theory, which really is a complete circumvention, it seems, of the appointments clause. A federal judge has already found that the appointment of Haba was done with a quote novel series of legal and personnel moves and that she was not lawfully serving as US attorney for New Jersey. The appellet judges seemed skeptical of the claim by Attorney General Pam Bondi's counselor Henry Whitaker that Haba's designation was consistent with long-standing practices of the Justice Department. And Judge D. Michael Smith pressed Whitaker to provide examples of similar US attorney appointments, which he couldn't do, >> and told us numerous times how how common practice has played into this. And I don't care about dates. I don't care about n names. uh can you come up with an example of any time that such a concatenation of events has occurred with respect to the appointment of a United States attorney? Well, I guess I cannot but I guess I would say that what what that series of precise and precisely timed events is not in substance from what the executive branch has done in other contexts, analogous context. My guest is constitutional law expert Harold Krent, a professor at the Chicago Kent College of Law. So, how several people charged with federal crimes in New Jersey are challenging Haba's authority to lead the US attorney's office there. Tell us about the arguments they're making at the appellet court. Well, let's take a step back. I mean, the appointments clause provides that the president must appoint all superior officers of the United States subject to consent by the Senate. So, the question here is that Hava we know is a superior officer. She's the US attorney. That's been decided before superior officer. So, the president importantly gets to fill that position. But there must be Senate consent. And for whatever reason, the president has tried to circumvent the Senate's power to give consent to Hava's position. So that's the the legal structure. What's happened along the way is convoluted, but there is a another statute called the vacancies act which says that the president can appoint certain individuals for a limited period of time if the position is vacant and thereby can get rid of the Senate consent requirement just for that to fill the vacancy until there's time he can make decision and decide who should fill that post. So he did appoint Haba in that direction. The time period lapsed and under this congressional statute the first assistant who was like a career officer is then to fill that position again only until the president decides who he wants to fill that office subject again to Senate consent. And so the first assistant under the statute took over office after Haba's time period was over. But then she was fired and she was fired because then President Trump wanted to put Hava in as the vacant first assistant so she could continue her tenure and continue to avoid the need for Senate consent. So the president here has snubbed his nose at the Senate continuously. He's done an endun around the appointments clause. And so that's the situation we're in that's now being challenged by several criminal defendants who are now appearing in that um jurisdiction. >> One of the judges, D. Brook Smith, called it a concatenation of events. The government's attorney said this was consistent with the long-standing practice of the Justice Department, but he couldn't point but he couldn't point to any similar situations. >> Yeah. I mean what the government can argue they really have very limited arguments um is that each step along the way may have some kind of precedence right there clearly a first assistant can fill the position until the president appoints a replacement but there's never been a situation before where they fired the first assistant so that they could put in the person who previously had the position um in so that they can continue being in an acting position without the necessity of senator torial consent. So clearly this is like taking little steps and the justice department has to admit this is circumventing the Senate's consent authority and so the court is then left with the question of like okay each little step along the way maybe has some kind of antecedance or historical practice. But anybody looking at this could say the president is trying to sty the senate's important role under article two of the constitution. Also, at one point, federal judges in New Jersey declined to keep her as the top prosecutor, >> an alternative mechanism which allows judges to appoint interim US attorneys. Uh so there's like two different routes, you know, one is sort of through the first assistant that we talked about before. Another is they can be triggered that the court say, "Oh, there's a vacancy here. We have to do this." the court rejected Aba as as being not competent enough, not experienced enough. And so that just again heightens the the fact that this is a showdown that Trump is insisting on, you know, not getting many favors, but so far he's been able to keep Ahaba in position. One of the judges repeatedly suggested that one of the key laws at issue in the case suggested that Congress wanted unconfirmed acting top prosecutors to be career prosecutors rather than political picks. >> Yeah. So the idea of a first assistant being able to take over temporarily, not for permanence, but is the idea that you want to have someone with knowledge and experience to fill that position as a temporary head of a vacant office. And obviously by firing the first assistant and then naming Haba as first assistant, the Trump administration was under cutting the congressional goal of having an somebody experienced to act as an officer until the president can get confirmation from Senate. I wouldn't take that argument too far because I think President Trump can appoint someone who is incompetent into that office and then just have the question of whether the Senate is going to consent or not. So that that I think is not a bar to the president appointing Haba. But nonetheless, the idea of the first assistant is to ensure that someone with experience and perspective take over the position on a temporary basis. And that couldn't happen because of the intervention of the Trump administration. >> The Trump administration had a fallback position that regardless of other statutes, Pam Bondi, the US attorney general, could delegate powers of a Senate confirmed US attorney to Haba for a period of time. >> That fallback has never been tested to my knowledge. And it seems like again like a circumvention of the vacancy act. Congress has been very clear what should happen if there's a vacancy and I agree that there is ability of officers in the administration Trump administration to delegate their own duties but this is not Bondi's own duties this is duties that are subscribed to a US attorney and that congress has set up by creating the office of US attorney so I don't think the fallback is actually going to going to work here at all and in face of the clear steps that I mean the convoluted steps But the steps that Congress has set out in the vacancies act, you know, I think that the Trump administration is going to have a hard time persuading the court that what it did here with Haba's nomination and then renomination is going to pass muster. >> I mean, if you take it from what happened in the oral arguments, it seemed like the judges were questioning the government's move. One judge called it a complete circumvention, it seems, of the appointments clause. So assuming that the third circuit says her appointment was not lawful, the Trump administration will take it to the Supreme Court, is there any indication what the Supreme Court would do? Have they handled anything like this? >> The vacancies act um I've always found to be very convoluted. It is. And you know, I think the court will not be fond of dealing with the the intricacies of the vacancies act either. You know, the whole thing is this is just a I hate to use the expression, it's a trumped up um legal issue because all that Trump has to do is a pointer and let the chips fall where they may and that's what's supposed to happen under the Constitution. So, I think that the Supreme Court would be somewhat reticent to take the case and somewhat resistant simply because of the fact that the options for President Trump to cure this is just a pointer and his refusal to do this is causing this legal morass. Can he appoint her if the New Jersey senators refuse to give a blue slip? >> I think he can. I think that's that's kind of a senatorial privilege, but it's not in the Constitution. And so I think that the president would be on strong ground and saying yes, there's a long cherished, if you will, tradition of having the senators agree on appointment, but that's not in the Constitution. And so I think if President Trump said tradition, you know, be done, um, I'm going to appoint Haba. Personally, I think he could probably do it. The Haba case isn't an isolated incident. A judge in Nevada last month ruled that Nevada's acting US attorney was unlawfully installed to her role. And we have FBI Director James Comey filing motions to dismiss the charges brought against him by Lindseay Hallan. Is the Trump administration putting all the cases that are being brought or litigated during these terms in jeopardy with, you know, continuing to hold on to these temporary acting interim US attorneys? >> Absolutely. I mean, I think the Trump administration is acting, you know, needlessly and heedlessly because they could accomplish its goals more directly by ensuring that the Senate go back into session, which has its own problems, I understand, but just making appointments and getting senatorial consent, which is clearly the constitutional designed methodology. So they're creating a host of headaches for appellet courts and then later for the Supreme Court and they're jeopardizing some of their goals in terms of prosecution of Comey and others. >> Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Harold Crank to the Chicago Kent College of Law. We'll tell you about Trump's ask of $230 million for compensation for past investigations of him by the Justice Department. about. Yeah, they probably owe me a lot of money, but if I get money from uh our country, I'll do something nice with it, like uh give it to charity or give it to the White House while we restore the White House. >> I'm June Graasso and you're listening to Bloomberg. How Let's turn to another legal issue involving President Trump. He's suing his own justice department for $230 million in compensation related to the investigations into whether his campaign colluded with Russia in connection with the 2016 election and his postpresidential retention of classified documents. The New York Times first reported that, but Trump has basically confirmed it with comments in the Oval Office. I mean, we have numerous cases having to do with the fraud of the election, the 2020 election, and because of everything that we found out, I guess they owe me a lot of money. >> This is yet another time when I'm going to use the word unprecedented. So this is the most on the one hand amazing hutzbah or hubris that any of us have seen because what the president is saying is because the former administration investigated my actions with classified documents investigated my role in the Russia supposed influence of the 2016 election that they've committed tors. They've committed tors against me, violated my privacy rights, malicious prosecution, and therefore because of those tors, I can recover under the federal tort claims act. Federal Tor claims act is a government's waiver of immunity from tort suit in particularly defined circumstances. And under the federal tort claims act, before you can sue in court for a tort, you can file an administrative claim before the agency that one asserts caused the individual harm. So what this is is an administrative claim preparatory to a potential federal claims act lawsuit saying that I was injured by tors through this investigation in both these two contexts. And why this is so unbelievable is then it's the justice department that gets to decide whether to pay the claims or not. so that people he can fire, his own former personal attorneys, then will sit on this issue about whether he deserves compensation. So there's no court review, there's no public review. This is insider. It's like opening up the treasury. Let me scoop out as much as I want to help out my family. That's what this is in essence. And it's just outrageous. But let me also say that what's amazing about this that I'm sure the president hasn't considered is this is opening up the same process for those who've been injured by ICE. Because what people are saying is the only type of compensation allowed will be for people to go before the federal claims act and basically allege claims of brutality, false arrest, malicious prosecution, privacy rights invasions by ICE officers. And if I were defending those ICE officers, I would say, well, look, the president's done the same thing, almost the same theories. And if the president says we can use the federal claims act for his own purposes, then obviously people who've been injured by ICE officers should be able to use the mechanism despite the defenses in the federal claims act itself. >> According to the Justice Department manual, settlements of claims against the department for more than $4 million must be approved by the deputy attorney general or the associate attorney general. The deputy attorney general is Todd Blanch who represented Trump in his New York criminal case and in the Mara Lago classified documents case. And the associate attorney general is Stanley Woodward who represented Trump's valet and co-defendant also in the Mara Lago investigation. So the ethical issues are apparent. You don't have to be a lawyer to see them. But who's going to stop them? Not you or me. >> A Justice Department spokesperson said, "In any circumstance, all officials at the Department of Justice follow the guidance of career ethics officials." However, Attorney General Pam Bondi fired the department's top official responsible for advising the attorney general and the deputy attorney general on ethics issues in July. And there is no replacement. and and of course the most recent appointment individual had to recuse himself because of anti-Semitic and antilack sentiments that he articulated. So yeah, we don't have a top ethics official anymore. There there is just no break. There's no internal guardrail on this. It's a it's a smart move on Trump, but it's a disgusting move because it just shows the problem of having no type of separation or independence. And so I don't know whether President Trump will go through with it, but he actually could scoop millions of dollars from the US Treasury and deposit in his account based upon this administrative claim. >> And he knows what's going on because in in the Oval Office, he said, "I'm the one who makes the decision." >> And uh you know, that decision would have to go across my desk and it's awfully strange to make a decision where I'm paying myself. The problem is will we know when this happens or is it all internally done within the justice department? >> The actual payment has to be in a record. Okay. >> Um so there will be legally uh cognizable means to say whether or not this happened, but the deliberations don't have to be in public. So we're not going to get a sense of who said what. There's not going to be like briefs before a court. This is an internal decision by his uh deputy and associate as to whether and how much to pay him. Uh but we will know that taxpayer monies will be allocated to his bank accounts. And you know who knew that being president would be so profitable. This is just another you know ingenious way that President Trump is bound to line his own potentially line his own pockets at the expense of the American taxpayer. >> Unprecedented. I'll say it again. Unprecedented. Thanks so much, Hal, for joining me. That's Professor Harold Krent of the Chicago Kent College of Law. Former FBI Director James Comey has moved to dismiss the Justice Department's indictment against him, arguing that he was a victim of vindictive prosecution by President Donald Trump and challenging the appointment of the prosecutor who brought the case. Comey's lawyers argued that the appointment of former White House aid Lindseay Halligan to be interim US attorney for the Eastern District of Virginia was unlawful and that the indictment is a nullity because no properly appointed executive branch official sought and obtained it. Comey also argues that he was singled out and targeted for prosecution because he's been a vocal critic of Trump for years. My guest is Abby Smith, director of the criminal defense and prisoner advocacy clinic at Georgetown Law. Abby, tell us about his vindictive and selective prosecution motions. >> There are two ways to attack the charging decision of a prosecutor. But first, it should be understood that prosecutors have enormous discretion in deciding who to charge and what to charge. Even though as a matter of ethics under the rules of professional conduct, prosecutors are supposed to refrain from prosecuting a charge where there is no probable cause. And prosecutors are supposed to charge crimes, not people. But Comey doesn't get to rely on a critique of the Department of Justice's ethics. uh he has to mount a constitutional attack on his charges and there are two ways to do that. The first is by challenging the prosecution as selective and people tend to use selective and vindictive together. They're actually two different things and they're they rely on two different constitutional rights. Selective prosecutions prohibit prosecutors from prosecuting people based on an arbitrary classification. Usually selective enforcement has to do with prosecutions based on race or gender or ethnicity or something like that. But the constitution also forbids and this is as a matter of equal protection a prosecution that is based on an arbitrary classification. So race, religion, gender, ethnicity, those are the typical bases for a claim of selective prosecution. But it but there's this other phrase called arbitrary classification. And I think that's where Jim Comey lives. Here's the problem. I mean, there are many problems with a selective enforcement claim. First of all, because no doubt his lawyers are mounting this claim in order to get the case dismissed, it's not at all clear that dismissal is necessarily the sanction. I mean, it could be, and the stronger the claim, the more likely dismissal should happen, but the sanction is not a given, and it's a pretty demanding process. for the accused. And you know, often it's an unsuccessful challenge by the accused because in order to succeed under a selective prosecution claim, there needs to be a bunch of things that the defendant, Mr. Comey, can prove. first that he has been selected arbitrarily as a result of a you know a particular classification for him. I don't know what that classification would be called. Mr. Comey is was the director of the FBI and so he engaged in investigations that Donald Trump didn't like. I guess that would be his classification. So he has to he has to show that um that particular classification is not legitimate and it's not an investigation or a prosecution with a legitimate law enforcement purpose. The other thing that the defendant has to do is show that other people who have done the same exact thing weren't prosecuted. So it's sort of twofold. They're prosecuting him for his arbitrary classification, number one. And number two, similarly situated people have not been prosecuted. >> Well, Comey is pointing to four former Trump cabinet officials who he says were spared prosecution despite similar allegations. They lied to Congress. What about vindictive prosecution? >> So then there's vindictive and these two things are different and they're based on two different constitutional claims. So selective prosecution is an equal protection claim. Vindictive prosecution is a due process claim. And you know, a prosecutor initiates a prosecution or increases charges in an already existing prosecution in retaliation generally for a defendant exercising some legal right. Like a typical case of vindictive prosecution would be in states that have a kind of two-step denovo process where the very first trial is a bench trial and then if a person is convicted at the bench trial, they can seek a jury trial. If the defendant was charged with misdemeanor assault at at the bench trial and as a result of the defendant asserting his right to a jury trial, the prosecution then decides to charge him with felony aggravated assault. That's the typical example of a vindictive prosecution. It needs to be retaliation for a specific action taken by the defendant. So for Mr. Comey, here's the thing. It feels vindictive. It feels that he is being prosecuted only because he is, you know, one of apparently many people who are now on what can only be called Donald Trump's enemies list. Is there another reason for the prosecution aside from a vindictive one is the question for a vindictive prosecution. You know, is this a crime that needs to be prosecuted or is this so clearly retaliation? And you know, it's hard to figure out prosecutorial motive. For a vindictive prosecution, I I think the motive is much more a part of that claim. For selective prosecution, you're sort of looking at proof of kinds of crimes, people who are prosecuted, people who are not. Both things are really, really hard. A typical example of selective prosecution challenges were kind of the crack cocaine, powder cocaine prosecutions and the sentencing for crack cocaine because it was so much more of a black person's crime than a white person's crime. But those challenges were not especially successful. This is really novel. It's what we would call in the law sue generous. At least in my lifetime and I've been practicing law for more than 40 years. I can't think of an example that is at all analogous to the prosecution of James Comey. You know, it's not that previous heads of the FBI were perfect human beings and acted, you know, with absolutely no motive other than law enforcement, right? We all know a whole lot more about Jay Edgar Hoover than maybe we did at the time. But, you know, I can't really come up with an example that feels at all like the Comey example, nor can I come up with an example that feels like Leticia James. >> My question is too, so you're looking for the prosecutor's motive here. The motive is coming from the president, >> right? >> So, can they attribute the president's vindictiveness to the prosecutor? >> Okay, that's a great question. Um, I think here you can because there's some data to support that the attorney general of the United States does Donald Trump's bidding. Period. End of story. That, you know, Pamela Bondi has offered zero resistance from what any of us can see. Now, of course, we don't know what happens behind closed doors, but you know, when prosecutors are being fired for not doing the president's bidding, and they're being fired by Pamela Bondi and then substituted with somebody who's willing to do the president's bidding, I think it's fair to say Pamela Bondi is a surrogate for Donald Trump. I mean the reason that I can't come up with any, you know, analogous behavior is I mean not in my lifetime and certainly not since Watergate has any president used the Department of Justice as his own law office. The Department of Justice has a long history of independence and that was sharpened in the aftermath of of Watergate. And so, you know, it's very hard to come up with an example. You know, my free association would be to go back to John F. Kennedy. His brother was the attorney general of the United States. His brother certainly had a beef with any number of people, including J. Edgar Hoover. But there were no prosecutions that were clearly the result of an agenda that was based in animists. I don't think. Can you come up with >> No, I can't. No one seems to have come up with a a good example of this. What about his other claim that, you know, Lindseay Halligan wasn't properly appointed to the role? >> I think those claims are really interesting and they're happening not just with Lindsay Haligan. I hate to be hopeful, but I feel somewhat hopeful about these kinds of pre-trial motions being filed by people like James Comey, Leticia James, and so on. He's in front of Michael Knoff. I could not be better casting for the defense. Michael Knoff was the chief federal defender in the Eastern District of Virginia. He's a really smart and able guy and a courageous guy. The last time there was a government shutdown, it had a direct impact on all the federal public defender offices across the country. And Michael Knoff played a leadership role. I mean, he's a really smart and able guy. And he's the kind of judge who will say this has never happened before, but if arbitrary means anything, it lives in this case. You know, if there could be evidence of a vindictive prosecution, I think he's the kind of judge that would find it in this case. And I have to imagine too, you know, Comey's lawyers are all a bunch of former federal prosecutors. So very smart and able and they will present a pretty good case. They're not William Kunler. I mean, they're going to present a very lawbased case. >> And Comey is beefing up his defense team even more. He recently hired veteran appellet litigator Michael R. Dbin, who was formerly the Justice Department's deputy solicitor general, as well as Rebecca Donleski, a former chief of the public corruption unit at the US Attorney's Office in Manhattan. >> Yes, he has. It's got to be incredibly costly. And you know what? It's scary. Once a person is being prose, they're scared. They're like any other client of mine. It doesn't matter how powerful they are in the world. It's scary because somebody is threatening them with a prison sentence and forcing them to get counsel and forcing them to basically, you know, defend their reputation. So, you know, it's a big deal. And that's the ethics are essential for prosecutors. You know, prosecutors have so much power. They're not supposed to wield it as if it's nothing. Ethical rules say in the very first comment following the rules, a prosecutor has the responsibility of a minister of justice, not simply that of an advocate. They're supposed to be restrained. They're supposed to care about procedural justice. But if this is not selective prosecution and if this is not vindictive prosecution, I honestly don't know what ever would be. What's the point of having those challenges if this does not meet up with them? >> We'll have to see what the government's answer is to Comey's motion. Thanks so much, Abby. That's Abby Smith, director of the Criminal Defense and Prisoner Advocacy Clinic at Georgetown Law. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcast, Spotify, and at www.bloomberg.com/mpodcast/law. And remember to tune in to the Bloomberg Law Show every week night at 1000 p.m. Wall Street time. I'm June Graasso and you're listening to Bloomberg. [Music]