A MARTÍNEZ, HOST:
The United States Justice Department has obeyed the demand of President Trump turning the law enforcement system against a political opponent.
STEVE INSKEEP, HOST:
A prosecutor hand-picked for the task obtained an indictment of former FBI director James Comey. She did that job after the previous prosecutor, also chosen by the president, found insufficient evidence to indict Comey for allegedly lying to Congress. So Trump changed personnel and publicly urged Attorney General Pam Bondi to act. Now, the allegation against Comey concerned a media leak about the investigation of Russia's interference in the 2016 election.
Comey told a Senate committee that he had not authorized leaks, while the indictment claims he did. A bipartisan Senate committee, by the way, did find Russia did interfere in the 2016 election. But Trump has spent years claiming the investigation was a conspiracy against him. He fired Comey in 2017 when the FBI director did not drop the investigation, and Trump has talked about Comey ever since. Here's Comey on MORNING EDITION in May.
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JAMES COMEY: I seem to be the relationship that Donald Trump just can't get over. I mean, I've been gone from the FBI job for more than eight years, but he still wakes up some nights, I guess, with pain in his chest that I'm gone.
MARTÍNEZ: We've called up Ryan Goodman about this. He's a legal scholar at NYU who served as a Pentagon counsel in the Obama administration. So, Ryan, what'd you think of the charges?
RYAN GOODMAN: So the charges seem fairly weak on their face. They're very unusual in that it's a very thin indictment of just a page and a half. And if the charges are indeed about Mr. Comey's exchange with Senator Cruz on the matter of whether or not Comey authorized Andy McCabe's deputy to make leaks or disclosures to the media, then there's a deep problem for the Justice Department. And it's because McCabe himself did not ever say that Comey had preauthorized those disclosures. And it would be consistent with all the reporting that the prior U.S. attorney, Mr. Siebert, was not willing to bring the case.
MARTÍNEZ: So, right, if the charges, as you've described them, are weak, how do you think the government will go about trying to prove them?
GOODMAN: It's difficult to say because the government, according to all the reporting, the prosecutors themselves actually thought that there was not enough evidence to charge, which is remarkable, meaning that they didn't even think there's enough evidence for probable cause - let's say that's like a 20% likelihood that he committed the crime - not that they didn't even think there's enough evidence for proof beyond a reasonable doubt. So that's the big question. And the other part would be, whoever is the unidentified person that did provide the information to the media. If that is Mr. McCabe, you would think that the government would have to rely on his testimony or whoever that person is. And that's critical to the government's case.
MARTÍNEZ: Yeah, and McCabe would probably not admit to that, I would imagine.
GOODMAN: That's right. And it's also the oddest witness possible because in the first Trump administration, under Attorney General Bill Barr, they did try to indict Mr. McCabe for the opposite (laughter), for the idea that Mr. Comey was telling the truth and Mr. McCabe lacked candor or was not. And they failed to get an indictment on that ground.
MARTÍNEZ: So Comey posted a response on Instagram. Let's hear a part of it.
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COMEY: My heart is broken for the Department of Justice. But I have great confidence in the federal judicial system, and I'm innocent, so let's have a trial.
MARTÍNEZ: All right, so pretty unusual for a criminal defendant to make a public statement like that and also to be as bold as to say let's have a trial. So what did you make of his response?
GOODMAN: I did think it was a forceful response. And the ways in which he worded that make me think that he might, in fact, ask for a very fast trial. He could put this on a fast track, and that would put the government on its back heels potentially because it would mean that whatever they're prepared to present, they'd have to come to court with it very quickly.
MARTÍNEZ: Let's say James Comey's defense is based at least a little bit on Trump's public statements about him. Could that apply, that defense apply to people such as New York Attorney General Letitia James?
GOODMAN: Yes, absolutely. I do think we have every reason to believe that Mr. Comey and Letitia James, if she were indicted, would bring a claim of vindictive or selective prosecution. And that is a very hard case to ever make against the Justice Department. But there's ample evidence here, given the president of the United States has been calling for Mr. Comey to be criminally investigated or criminally indicted all the way back to 2017 and as recently as last weekend, saying that he wanted his attorney general to bring the charges, which is just really remarkable. And obviously, he's got a grudge (laughter).
MARTÍNEZ: Yeah. And really quick, last thing. We mentioned Comey said he has great confidence in the federal judicial system. Do you?
GOODMAN: I do think so. My view is that the federal judicial system has been holding up. Judges have been very skeptical of the Justice Department when the Justice Department has not been abiding by the regular ways in which it's supposed to behave. And so the judicial system is set up for this kind of test.
MARTÍNEZ: OK. Law professor and former Pentagon counsel Ryan Goodman. Thank you.
GOODMAN: Thank you. Transcript provided by NPR, Copyright NPR.
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