ALEXANDRIA, Va. — A hearing this morning on James Comey's motion to dismiss for vindictive and selective prosecution was largely overshadowed by the revelation that the indictment may be invalid because it was tainted by interim U.S. Attorney Lindsey Halligan. You can read my original report from the court. Here.
It would be a monumental way to end Comey's gun prosecution: A Trump loyalist with no prosecutorial experience has handled the basic elements of grand jury practice so poorly that Comey has never been indicted.
But the botched indictment only scratches the surface of the bad faith and bad motives that drive Comey's prosecution, so let's run through some of the highlights of the nearly hour-long argument that preceded U.S. District Judge Michael Nachmanoff demanding answers from prosecutors about their mishandling of the grand jury. Rather than rehash the arguments of both sides—former Deputy Solicitor General Michael Dreeben for Comey and Nathaniel Lemons for the government—I want to focus on what the judge was most interested in and where his questions were most focused.
Is Trump's general hostility toward Comey enough?
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
Nachmanhoff pushed both sides to solve the problem comments from Trump, which he told reporters the day after he posted his the notorious message Attorney General Pam Bondi to continue the prosecution of Comey, James and Senator Adam Schiff. Noting that James cited these remarks in her report but Comey did not, Nachmanov read most of them aloud:
“No, I just want people to act,” Trump said. “They have to act, and we want to act quickly. You know, they were ruthless and vicious. I've been prosecuted twice. I've been charged five times. It turned out to be a phony deal. And we have to act quickly! One way or another. One way or another. They're guilty, they're not guilty, we have to act quickly. If they're not guilty, that's fine. If they're guilty, or if they should be charged, they should be charged. And we do it now.”
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
Nachmanhoff pushed both sides to solve the problem comments from Trump, which he told reporters the day after he posted his the notorious message Attorney General Pam Bondi to continue the prosecution of Comey, James and Senator Adam Schiff. Noting that James cited these remarks in her report but Comey did not, Nachmanov read most of them aloud:
“No, I just want people to act,” Trump said. “They have to act, and we want to act quickly. You know, they were ruthless and vicious. I've been prosecuted twice. I've been charged five times. It turned out to be a phony deal. And we have to act quickly! One way or another. One way or another. They're guilty, they're not guilty, we have to act quickly. If they're not guilty, that's fine. If they're guilty, or if they should be charged, they should be charged. And we do it now.”
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
For his part, Dreeben seemed wary of the possible absence of a dismissal note, I suspect because it would have been better for his case if the line prosecutors had recently given written recommendations against filing charges, as they did in the James case, and Halligan ignored them. But the judge appeared to have a different point in mind, which he detailed later in the hearing.
If Halligan had been appointed interim U.S. attorney on Sept. 22 and referred Comey's case to a grand jury on Sept. 25, “what independent assessment could she have conducted in the interim?” – asked the judge. The presence or absence of the denial and charge memoranda will help determine whether Halligan truly exercised independent judgment. Lemons countered that the issue would need to be clarified if the judge ordered the discovery phase of the vindictive charge.
What about Trump's statements that you didn't quote?
Nachmanhoff pushed both sides to solve the problem comments from Trump, which he told reporters the day after he posted his the notorious message Attorney General Pam Bondi to continue the prosecution of Comey, James and Senator Adam Schiff. Noting that James cited these remarks in her report but Comey did not, Nachmanov read most of them aloud:
“No, I just want people to act,” Trump said. “They have to act, and we want to act quickly. You know, they were ruthless and vicious. I've been prosecuted twice. I've been charged five times. It turned out to be a phony deal. And we have to act quickly! One way or another. One way or another. They're guilty, they're not guilty, we have to act quickly. If they're not guilty, that's fine. If they're guilty, or if they should be charged, they should be charged. And we do it now.”
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
Lemons said he did not have permission from Deputy Attorney General Todd Blanche's office to answer the question on the grounds that it was a privileged work product. The most he could say was that there were a lot of internal discussions and a “draft memorandum.”
For his part, Dreeben seemed wary of the possible absence of a dismissal note, I suspect because it would have been better for his case if the line prosecutors had recently given written recommendations against filing charges, as they did in the James case, and Halligan ignored them. But the judge appeared to have a different point in mind, which he detailed later in the hearing.
If Halligan had been appointed interim U.S. attorney on Sept. 22 and referred Comey's case to a grand jury on Sept. 25, “what independent assessment could she have conducted in the interim?” – asked the judge. The presence or absence of the denial and charge memoranda will help determine whether Halligan truly exercised independent judgment. Lemons countered that the issue would need to be clarified if the judge ordered the discovery phase of the vindictive charge.
What about Trump's statements that you didn't quote?
Nachmanhoff pushed both sides to solve the problem comments from Trump, which he told reporters the day after he posted his the notorious message Attorney General Pam Bondi to continue the prosecution of Comey, James and Senator Adam Schiff. Noting that James cited these remarks in her report but Comey did not, Nachmanov read most of them aloud:
“No, I just want people to act,” Trump said. “They have to act, and we want to act quickly. You know, they were ruthless and vicious. I've been prosecuted twice. I've been charged five times. It turned out to be a phony deal. And we have to act quickly! One way or another. One way or another. They're guilty, they're not guilty, we have to act quickly. If they're not guilty, that's fine. If they're guilty, or if they should be charged, they should be charged. And we do it now.”
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
Nakhmanov, incredulous that the official attorney in the case could not answer whether there was a denial note, peppered Lemons with questions: You didn't check to see if there was a denial note? Were you looking for a note on declination? Have you tried to find out whether the charge sheet has been prepared? Did someone ask you not to answer?
Lemons said he did not have permission from Deputy Attorney General Todd Blanche's office to answer the question on the grounds that it was a privileged work product. The most he could say was that there were a lot of internal discussions and a “draft memorandum.”
For his part, Dreeben seemed wary of the possible absence of a dismissal note, I suspect because it would have been better for his case if the line prosecutors had recently given written recommendations against filing charges, as they did in the James case, and Halligan ignored them. But the judge appeared to have a different point in mind, which he detailed later in the hearing.
If Halligan had been appointed interim U.S. attorney on Sept. 22 and referred Comey's case to a grand jury on Sept. 25, “what independent assessment could she have conducted in the interim?” – asked the judge. The presence or absence of the denial and charge memoranda will help determine whether Halligan truly exercised independent judgment. Lemons countered that the issue would need to be clarified if the judge ordered the discovery phase of the vindictive charge.
What about Trump's statements that you didn't quote?
Nachmanhoff pushed both sides to solve the problem comments from Trump, which he told reporters the day after he posted his the notorious message Attorney General Pam Bondi to continue the prosecution of Comey, James and Senator Adam Schiff. Noting that James cited these remarks in her report but Comey did not, Nachmanov read most of them aloud:
“No, I just want people to act,” Trump said. “They have to act, and we want to act quickly. You know, they were ruthless and vicious. I've been prosecuted twice. I've been charged five times. It turned out to be a phony deal. And we have to act quickly! One way or another. One way or another. They're guilty, they're not guilty, we have to act quickly. If they're not guilty, that's fine. If they're guilty, or if they should be charged, they should be charged. And we do it now.”
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
Nachmanov wanted to know from both sides whether the Justice Department had issued a memorandum of denial—a written explanation of why Comey should not be charged—as it did in the Letitia James case. Comey doesn't know, and in the most contentious part of the hearing on the motion to dismiss, Lemons refused to speak, saying he didn't have permission from Justice Department officials.
Nakhmanov, incredulous that the official attorney in the case could not answer whether there was a denial note, peppered Lemons with questions: You didn't check to see if there was a denial note? Were you looking for a note on declination? Have you tried to find out whether the charge sheet has been prepared? Did someone ask you not to answer?
Lemons said he did not have permission from Deputy Attorney General Todd Blanche's office to answer the question on the grounds that it was a privileged work product. The most he could say was that there were a lot of internal discussions and a “draft memorandum.”
For his part, Dreeben seemed wary of the possible absence of a dismissal note, I suspect because it would have been better for his case if the line prosecutors had recently given written recommendations against filing charges, as they did in the James case, and Halligan ignored them. But the judge appeared to have a different point in mind, which he detailed later in the hearing.
If Halligan had been appointed interim U.S. attorney on Sept. 22 and referred Comey's case to a grand jury on Sept. 25, “what independent assessment could she have conducted in the interim?” – asked the judge. The presence or absence of the denial and charge memoranda will help determine whether Halligan truly exercised independent judgment. Lemons countered that the issue would need to be clarified if the judge ordered the discovery phase of the vindictive charge.
What about Trump's statements that you didn't quote?
Nachmanhoff pushed both sides to solve the problem comments from Trump, which he told reporters the day after he posted his the notorious message Attorney General Pam Bondi to continue the prosecution of Comey, James and Senator Adam Schiff. Noting that James cited these remarks in her report but Comey did not, Nachmanov read most of them aloud:
“No, I just want people to act,” Trump said. “They have to act, and we want to act quickly. You know, they were ruthless and vicious. I've been prosecuted twice. I've been charged five times. It turned out to be a phony deal. And we have to act quickly! One way or another. One way or another. They're guilty, they're not guilty, we have to act quickly. If they're not guilty, that's fine. If they're guilty, or if they should be charged, they should be charged. And we do it now.”
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
Nachmanov wanted to know from both sides whether the Justice Department had issued a memorandum of denial—a written explanation of why Comey should not be charged—as it did in the Letitia James case. Comey doesn't know, and in the most contentious part of the hearing on the motion to dismiss, Lemons refused to speak, saying he didn't have permission from Justice Department officials.
Nakhmanov, incredulous that the official attorney in the case could not answer whether there was a denial note, peppered Lemons with questions: You didn't check to see if there was a denial note? Were you looking for a note on declination? Have you tried to find out whether the charge sheet has been prepared? Did someone ask you not to answer?
Lemons said he did not have permission from Deputy Attorney General Todd Blanche's office to answer the question on the grounds that it was a privileged work product. The most he could say was that there were a lot of internal discussions and a “draft memorandum.”
For his part, Dreeben seemed wary of the possible absence of a dismissal note, I suspect because it would have been better for his case if the line prosecutors had recently given written recommendations against filing charges, as they did in the James case, and Halligan ignored them. But the judge appeared to have a different point in mind, which he detailed later in the hearing.
If Halligan had been appointed interim U.S. attorney on Sept. 22 and referred Comey's case to a grand jury on Sept. 25, “what independent assessment could she have conducted in the interim?” – asked the judge. The presence or absence of the denial and charge memoranda will help determine whether Halligan truly exercised independent judgment. Lemons countered that the issue would need to be clarified if the judge ordered the discovery phase of the vindictive charge.
What about Trump's statements that you didn't quote?
Nachmanhoff pushed both sides to solve the problem comments from Trump, which he told reporters the day after he posted his the notorious message Attorney General Pam Bondi to continue the prosecution of Comey, James and Senator Adam Schiff. Noting that James cited these remarks in her report but Comey did not, Nachmanov read most of them aloud:
“No, I just want people to act,” Trump said. “They have to act, and we want to act quickly. You know, they were ruthless and vicious. I've been prosecuted twice. I've been charged five times. It turned out to be a phony deal. And we have to act quickly! One way or another. One way or another. They're guilty, they're not guilty, we have to act quickly. If they're not guilty, that's fine. If they're guilty, or if they should be charged, they should be charged. And we do it now.”
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
The judge wanted to know whether the prosecution's vindictive motivation must be retaliation for the exercise of a constitutional right—in Comey's case, his First Amendment right to freely criticize Trump—or whether a vindictive prosecution claim could be sustained if the retaliation was based simply on a general dislike of the defendant. Comey's position was that both options were viable, and in the end, when questioned by Nakhmanov, Lemons agreed. This opens the door for Nakhmanov to consider all sorts of Trump insults aimed at Comey. Dreeben seized on the concession, saying the basic legal framework was not in dispute.
Was there a denial note from the Department of Justice?
Nachmanov wanted to know from both sides whether the Justice Department had issued a memorandum of denial—a written explanation of why Comey should not be charged—as it did in the Letitia James case. Comey doesn't know, and in the most contentious part of the hearing on the motion to dismiss, Lemons refused to speak, saying he didn't have permission from Justice Department officials.
Nakhmanov, incredulous that the official attorney in the case could not answer whether there was a denial note, peppered Lemons with questions: You didn't check to see if there was a denial note? Were you looking for a note on declination? Have you tried to find out whether the charge sheet has been prepared? Did someone ask you not to answer?
Lemons said he did not have permission from Deputy Attorney General Todd Blanche's office to answer the question on the grounds that it was a privileged work product. The most he could say was that there were a lot of internal discussions and a “draft memorandum.”
For his part, Dreeben seemed wary of the possible absence of a dismissal note, I suspect because it would have been better for his case if the line prosecutors had recently given written recommendations against filing charges, as they did in the James case, and Halligan ignored them. But the judge appeared to have a different point in mind, which he detailed later in the hearing.
If Halligan had been appointed interim U.S. attorney on Sept. 22 and referred Comey's case to a grand jury on Sept. 25, “what independent assessment could she have conducted in the interim?” – asked the judge. The presence or absence of the denial and charge memoranda will help determine whether Halligan truly exercised independent judgment. Lemons countered that the issue would need to be clarified if the judge ordered the discovery phase of the vindictive charge.
What about Trump's statements that you didn't quote?
Nachmanhoff pushed both sides to solve the problem comments from Trump, which he told reporters the day after he posted his the notorious message Attorney General Pam Bondi to continue the prosecution of Comey, James and Senator Adam Schiff. Noting that James cited these remarks in her report but Comey did not, Nachmanov read most of them aloud:
“No, I just want people to act,” Trump said. “They have to act, and we want to act quickly. You know, they were ruthless and vicious. I've been prosecuted twice. I've been charged five times. It turned out to be a phony deal. And we have to act quickly! One way or another. One way or another. They're guilty, they're not guilty, we have to act quickly. If they're not guilty, that's fine. If they're guilty, or if they should be charged, they should be charged. And we do it now.”
Driben seemed concerned that the judge treated the remarks as a backlash from the social media post, but later, when Nachmanov pressed Lemons about the same remarks, it became clear that the judge viewed them as particularly compelling evidence against the government.
At one point, when Lemons said Comey's claim of retaliation was based entirely on anonymous sources, news reports and speculation, the judge abruptly stopped him.
“You don’t want to say that these are not the words of the president?” asked Nakhmanov, quoting the quote above. The lemons hastily retreated.
Moments later, the judge again repeated Trump's remarks about “moving quickly” and “guilty or not guilty,” asking Lemons, “How does that fit with your practice of deciding whether to send a case to a grand jury?”
Then, still focused on Trump's remarks, which Comey did not cite, Nachmanov interrupted Lemons to ask his most pointed question about the prosecution's vindictive plea: How does this fit with the Justice Manual, which says you only prosecute cases if you are confident that the defendant will be found guilty beyond a reasonable doubt and the conviction will stand on appeal?
Lemon backtracked, saying that even if Trump had the wrong motive, Comey would have to prove that Halligan had the wrong motive in her own mind. At that point, the judge defended Comey, telling Lemons that Comey's argument was that Trump ordered the prosecution in a social media post and repeated that in subsequent comments.
At that point in the hearing, Nachmanov seemed convinced that the barrier had been lifted to a successful retaliation claim.
