Ex-prosecutor on DOJ's Powell probe and Trump's targeting of opponents

Geoff Bennett:

And now let's dive into some of the legal questions behind all of this and similar moves by the president in other cases.

We're joined now by Mary McCord, a former federal prosecutor, now executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University.

Mary, it's always good to see you.

So, Jeanine Pirro, who is leading this criminal investigation as the U.S. attorney for Washington D.C., longtime Trump ally, what are the standard guardrails when the appearance of a political conflict of interest is this intense?

Mary McCord, Former Justice Department Official:

Well, this is at the very earliest stage, right, with the service of a subpoena seeking information from Mr. Powell and from the Federal Reserve.

And so that -- we are a long way from any criminal charges. If the office determines that they've got evidence sufficient to seek a grand jury indictment, they would then have to go before a grand jury and the grand jury would have to vote. At least 12 members of the grand jury out of up to 23 would have to vote to return an indictment. And then, if that were to happen, there would be -- the case would be brought into federal court.

There would be opportunities for Mr. Powell to make motions to dismiss the case, including, I would expect here, on grounds of vindictiveness, because this is -- because of what you've just been talking about on this program about the pattern of pressure on Jerome Powell to cause the board to lower interest rates, and then the really awful things that the president has said about him and criticized him, all very suspicious timing with the bringing of this investigation.

So there'd be an opportunity for him to make motions based on that and other things. And, ultimately, if his motions were denied, he would go to trial. And then, of course, a jury of 12 would have to find unanimously beyond a reasonable doubt that every element of the offense has been proved.

And I would note that, with respect to the offenses that potentially are under investigation here, false statements to Congress and perjury, these are the things that Representative Luna referred to the attorney general for potential investigation, it doesn't mean that that's exactly what they're investigating, but that's what the indications are.

Those charges require willfully and knowingly making false statements. And there's just nothing that I've heard so far, based on Mr. Powell's testimony in June, Chairman Powell's testimony in June, that would suggest a basis for some willful and willfully false statement about a material fact.

Geoff Bennett:

And the Trump administration also tried to remove Fed Governor Lisa Cook unproven allegations of mortgage fraud. The Supreme Court has allowed her to remain on the board for now. Do the Cook and Powell cases have any direct bearing on one another?

Mary McCord:

Well, I -- the Cook case is going to be heard by the Supreme Court next week. And I actually think the timing of this revelation of these -- of this criminal investigation against Mr. Powell, while not technically related to the case in front of the court, I think it is something that lends credence to an argument that the attempt to get rid of board member Lisa Cook is not based in -- it's not well-grounded.

I mean, he -- the president offered his version of cause, meaning these allegations that again are just allegations of some sort of mortgage fraud that many of those who have looked carefully at the facts think don't stand up.

And so, in that environment of pressure, in the middle also, remember, of President Trump removing Democratic appointed board members from other multimember independent commissions, like the FTC, the NLRB, the CFPB, we could do alphabet soup here, I mean, this is a -- has been a year of removals of Democrats or those appointed by Democrats in favor of having boards made up of all of his own appointees.

So I think the context of adding this real lever of power, potential criminal investigation, needs to be thought of in the context of everything else happening, and including looking at the attempted firing of Lisa Cook.

Geoff Bennett:

And after the tossed indictments against James Comey and Letitia James, what does it mean institutionally that the Trump Justice Department is even pursuing this case against Powell, regardless of whether it ever results in charges?

Mary McCord:

Well, as you and I've discussed before, Jeff, it does seem like the White House and the president in particular is really directing the investigations that the Department of Justice engages in, particularly with respect to those people he perceives as his political opponents, James Comey, Letitia James, Lisa Cook, and now Jerome Powell.

And he -- there are also investigations into people like Adam Schiff, right? So the president is denying that he had anything to do with this, but I am skeptical of that, given how many times he has disparaged Mr. Powell and the pattern that this fits into of the way he would disparage and call for investigations of others, and then the Justice Department launches those investigations.

So it does not pass the smell test.

Geoff Bennett:

Mary McCord, thanks, as always, for speaking with us. We appreciate it.