U.S. attorney prosecuting Comey and James faces legal challenge over her appointment

Amna Nawaz:

Welcome to the "News Hour."

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

Geoff Bennett:

That prosecutor, Lindsey Halligan, is a Trump ally with no prosecutorial experience. She was sworn in days after the previous U.S. attorney resigned after being pressured to indict Comey and James.

President Trump has cast both Comey and James as his political enemies and called for their prosecutions after they pursued investigations into him.

Glenn Kirschner is a former assistant U.S. attorney for Washington, D.C. He joins us now after sitting in on today's hearing.

It's good to see you.

Glenn Kirschner, Former Federal Prosecutor:

Good to see you, Geoff.

Geoff Bennett:

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

Glenn Kirschner:

Very unusual.

This is a high-stakes motion that we saw litigated today, because sort of at the bottom of it all, if the judge, Judge Currie, who is presiding over this motion, decides that Lindsey Halligan was not lawfully appointed, because she was the only person in the grand jury obtaining this indictment, it would very likely result in the case being dismissed outright against both James Comey and Letitia James.

And really the only thing left to argue about would be whether it should be indicted with prejudice or without prejudice. With prejudice means there would be a chance for DOJ to go back in and try to correct the error — without prejudice, rather.

With prejudice means it is over and Donald Trump will never get to take James Comey or Letitia James to trial.

Geoff Bennett:

The defense lawyers pointed to President Trump's public pressures — public pressure, to include his TRUTH Social posts — you see one right there on the screen — as evidence that these prosecutions were politically driven.

From a legal standpoint, what weight does the president's rhetoric carry in evaluating whether these prosecutions were selective or vindictive?

Glenn Kirschner:

Extraordinary weight.

So every word Donald Trump has ever spoken about James Comey or Letitia James, anything he has ever posted, all of it is admissible evidence on the question of whether this is a vindictive prosecution and/or a selective prosecution. These are all called admissions by a party opponent.

And this hearing today wasn't really directly about that, but a little bit of that crept in with some of the questions that the judge was asking. For example, she opened with, have the parties seen a declination memo where prior career prosecutors had declined to bring these charges because there was insufficient evidence to do so?

And the defense said we haven't, but we would like to and we're going to be needing it in discovery.

Geoff Bennett:

Regardless of how this judge rules — and I think set to rule by Thanksgiving. Is that what she said?

So what does this entire episode do to the public confidence of the DOJ?

Glenn Kirschner:

It doesn't enhance it, Geoff.

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

And because Donald Trump has all but announced, he's anointed himself the chief prosecutor in all cases, posting things like, look, this is making us look bad, I need you all to move out against the Tish James and the Comeys and others, gone is that wall, that separation.

And I think that severely undermines the public's confidence in the independence of the Department of Justice.

Geoff Bennett:

And there has also been a hollowing out with the firings, the transfers, the resignations of veteran lawyers.

Glenn Kirschner:

And I worry about our national security. I worry about, for example, the people of the District of Columbia, whom I served for decades as a federal prosecutor in D.C. That office is down reportedly approaching 100 lawyers.

And, traditionally, we only had about 325 prosecutors in that office. If we don't have a third of our prosecutorial work force, in my opinion, that's a public safety issue in Washington, D.C.

Geoff Bennett:

So coming back to this case in particular, what happens next?

Glenn Kirschner:

So, as you mentioned, Judge Currie announced that she will have a ruling for us prior to Thanksgiving. So we will be waiting every day to get that ruling.

In the event she grants the motion, I think then Judge Nachmanoff, who is the presiding judge in Virginia, will step back in and he will have to decide the consequences of her granting the motion. It will likely be a dismissal of the charges. And then I think we all know where it's going after that. It's going to the Court of Appeals and I would assume the Trump administration will try to bubble it up to the Supreme Court if they can.

Geoff Bennett:

Glenn Kirschner, great to see you. Thanks for coming in.

Glenn Kirschner:

Thanks, Geoff.