Jennifer Anton | 00:05
Hello, everyone. This is Jennifer Anton, and I am here today with our guest, John Helms, who is a criminal defense lawyer and appellate attorney here in Dallas, Texas. We’re going to talk to John today about one of the biggest stories in today’s news, which is the indictment of the former FBI director, James Comey. I know you all have a lot of questions about this, and John is going to be able to provide a lot of answers and some good information for us. So welcome, John. Thanks for being here today.
John Helms | 00:36
Thanks for having me.
Jennifer Anton | 00:39
So as I was saying recently, the former FBI director James Comey was indicted for making false statements to Congress. Mr. Comey, as you know, has been a fierce critic of President Donald Trump. And a lot of people are saying that this is Donald Trump’s act of retaliation against former FBI director Comey. Can you describe a little bit about how the animosity between the two came about and where we are today?
John Helms | 01:07
Sure. So this all goes back. To the beginning of the first Trump administration. So James Comey was the FBI director under Barack Obama, and normally the FBI director will continue in that role with a new administration. But there were several things going on that were personally of interest to Mr. Trump. One of them was the ongoing investigation of Russia’s activity with respect to the Trump campaign, the Russia investigation.
Another was an investigation of a Trump political ally named Michael Flynn. And so there were some meetings in the White House in which Director Comey and President Trump were discussing these things. And according to Mr. Comey, in one of the meetings about the Russia investigation Mr. Trump, Rest. Mr. Comey. Or suggested that he should back off that. In another meeting when they were discussing Mr. Flynn, Mr. Comey has indicated that Mr. Trump told him that he wanted him to back off of that. Investigation and prosecution of his ally Mr. Flynn.
And then there was another discussion in which, according to Mr. Comey, President Trump. Demanded that Mr. Comey express loyalty to President Trump. Now the FBI director traditionally has had some degree of independence and is expected not simply to act as someone who’s beholden to the president, but is expected to be independent. And so Mr. Comey did not say he would promise loyalty, he said he would promise honesty. And according to Mr. Comey, that was upsetting to Mr. Trump that he wouldn’t promise of loyalty, which Mr. Comey thought would have been inappropriate.
So Mr. Comey, began making notes of his discussions with President Trump, because he felt that it was important to be able to have documentation of exactly what had happened and when, because he felt like Mr. Trump was putting improper possibly illegal, pressure on him with respect to specific investigations. Eventually, Mr. Comey decided Leak. His memos to a law professor at Columbia University so that they could be shared because Mr. Comey says he felt that the public had to know what was really going on.
So, President Trump fired Director Comey and the official White House explanation was that it had to do with the handling of Hillary Clinton’s emails and that investigation. But then a few days later, President Trump, in an interview, said that it was really more about that, quote, Russia thing. That led to the appointment of an independent counsel, Robert Mueller, for the Russia investigation. So then, now former director Comey wrote a book and went on kind of a speaking tour. And in the book that he wrote, he describes his interactions with President Trump. Compares him to a mob boss and says that he believed Mr. Trump acted very improperly in trying to put pressure on him for these investigations. Mr. Trump responded to that by calling Mr. Comey an untruthful slime ball and suggested that he should be in jail.
And then from that time on, periodically, Mr. Comey would appear on news programs as a talking head type who would express opinions about things that Mr. Trump did, and he’s remained a frequent. Critic of Mr. Trump.
So when Mr. Trump was reelected, he apparently had in mind that there were some political opponents, including Mr. Comey and the Attorney General of New York, Letitia James, who had headed up a prosecution of Mr. Trump. He had these political enemies and there was, he continued to express animosity about these political enemies. Well, that ended up eventually resulting in a criminal indictment of Mr. Comey. So that’s how the relationship developed, and then how we got here today.
Jennifer Anton | 06:13
Okay. So, now that Mr. Comey’s been indicted, what are the next steps? What happens next?
John Helms | 06:23
Well in any criminal case, there are going to be pretrial type of proceedings. And one of the ones that I expect, I think most people expect, is that Mr. Comey is going to try to persuade a judge to dismiss the indictment based on what is called vindictive prosecution. And so I expect that will be one of the first, one of the first motions that we will see is a motion to dismiss the indictment based on vindictive prosecution.
Jennifer Anton | 07:02
Okay, so tell us a little bit about what vindictive prosecution motion is.
John Helms | 07:07
So vindictive prosecution, it’s different from what it sounds like. It sounds like prosecutor is being mean to you or a prosecutor is picking on you. And it’s not that. It has to be a lot more than that. You don’t have a right to have a kind, warm and fuzzy prosecutor. You don’t have a right not to have a tough prosecutor.
However, our courts have said that the Due Process Clause of the Constitution says that you do have a right not to have a prosecutor charge you or increase charges against you . In retaliation, for exercising a right that you have. So, in order to show vindictive prosecution, Mr. Comey would have to show that the prosecution of him was based on an exercise of his rights. And it is a very difficult showing to try to make. The courts have said it should be exceedingly difficult to make that type of showing because prosecutors have lots of discretion. And courts should not be questioning what prosecutors decide to do. That’s the role of a prosecutor, not the role of a judge. So that’s going to be the type of motion and the type of proof that he’s going to need.
Jennifer Anton | 08:42
It’s my understanding that at one point Donald Trump himself filed a motion for vindictive prosecution against prosecutors who are pursuing him in another case. What can you tell us about that?
John Helms | 09:00
Well, Interestingly, President Trump was charged in connection with the January 6th Insurrection. And his defense lawyers filed a motion to dismiss the indictment based on vindictive prosecution. And that motion was signed by a man named Todd Blanch, who is now the Deputy Attorney General that Mr. Trump appointed.
So he’s now the number two person in the Justice Department. And that motion claims that The January 6th indictment was retaliation against Mr. Trump for basically his political opinions. So it’s very interesting that he is likely, that Mr. Comey may use some of the language and concepts that Mr. Trump used just a few years.
Jennifer Anton | 09:57
Ago. So what are we going to learn from Donald Trump’s own motion and how it relates to this motion.
John Helms | 10:06
Well, the Trump motion is based on some alleged statements by now former President Biden about his belief about the his beliefs about the January 6th. Insurrections. The judge in that case said that there was not enough proof or even potential proof of the allegation that anything Mr. Biden said or did had any actual effect the prosecutors who were pursuing the case and one of those prosecutors, the lead prosecutor, was a man named Jack Smith who was appointed and who was kept independent of from Mr. Biden.
So the court says, well, Everything you’re saying is just theoretical, but you can’t link up, you haven’t linked up. Any prosecution decision with anything that shows that there’s retaliation against you for doing something. So the court rejected Mr. Trump’s motion.
Jennifer Anton | 11:22
Okay. So let me ask you this, in your opinion, Do you think Comey’s motion is going to be the same? Similar to Trump’s motion?
John Helms | 11:32
Well, I think it’ll be similar in the sense that the law that Mr. Comey will cite will be similar but the facts are going to be very different because unlike president Trump, who really never could link up any alleged animosity with any prosecutor’s decision. I think there’s a timeline and some facts that are pretty strong indications of actual vindictiveness. And let me explain that. The indictment of Mr. Comey is based on some testimony that he gave to Congress. About whether he had authorized his then second in command, Andy McCabe, make or to be himself or to have someone else be a confidential source for the Wall Street Journal about some issues involving the Hillary Clinton investigation. So in his congressional testimony, Mr. Comey is asked whether he ever authorized anyone to be a confidential source for the FBI about the Hillary Clinton investigation. And he essentially says, no, he didn’t do that.
Well, Andy McCabe had made some statements about to the effect that he had talked to Mr. Comey about it or let him know. And so the prosecutors in this indictment of Mr. Comey are saying, well When Mr. Comey said, “I didn’t authorize anyone to be a confidential source,” that was false. Because Andy McCabe, says or has said that Something to the effect that he had talked to Comey about it and Comey didn’t stop him or react negatively.
So that’s what this case is about. But the Justice Department’s Office of Inspector General, which is kind of like a watchdog organization for the government, has investigated this. And they say that the weight of the evidence from their investigation supports Mr. Comey’s version that he never authorized this. Now, he may have heard about it after the fact. But he didn’t authorize it in advance, is what the Office of Inspector General says.
And then the United States Attorney’s Office for the Eastern District of Virginia was investigating this in the new Trump administration. And it’s been reported that there was a memo that was written by career prosecutors indicating that prosecution of Mr. Comey should be declined.
So these are career prosecutors who are not appointed by any politician. This is their job. And according to numerous media reports, there was a prosecution memo saying, we don’t think this should be prosecuted. Probably has something to do with the Office of Inspector General report. Probably has to do with whether Mr. McCabe was saying that he told Mr. Comey after the fact. As opposed to before, but in any event, there was a memo saying you should decline it.
So the US Attorney the acting US Attorney for that district, who’s a man named Eric Siebert, was demonstrably hesitant to push a prosecution of Mr. Comey. So on September 19th of this year, Mr. Tom? Publicly called for Eric Siebert to be removed. And it seems pretty clear that it was because he was not pursuing investigations or criminal prosecutions of Mr. Trump’s political enemies, specifically Comey and Letitia James. So on that same day, Mr. Siebert resigned. And then Mr. Trump said, well, no, he didn’t resign. I fired him. So that’s September 19th.
So the next day, September 20th, Mr. Trump made a social media post that some people think was not intended to be a public Post but was intended to be a private communication. But he addressed it to the Attorney General, Pam Bondi, who’s the head of the Justice Department, And in that post he says, “Nothing is being done Justice must be served now. And so he’s demanding immediate action. On criminal prosecution, of Siebert, excuse me, of Comey and Letitia James. So that’s September 20th, that’s the next day. Two days later, Mr. Trump appoints a woman named Lindsay Halligan to be the U.S. Attorney for the Eastern District of Virginia. Now, that is a curious appointment, to say the least. Ms. Halligan is a young woman with very limited legal experience and virtually no criminal experience at all. She was a junior member of one of the Trump legal defense teams, but she’s never been a criminal prosecutor. She’s never been involved in a criminal trial at all. And as best I can tell, Her only trial experience was a two-day insurance defense trial where she was second chair.
So she has no relevant experience and in fact there are serious questions about whether the appointment of Ms. Halligan was legal or not. I think that’s a separate issue that Mr. Comey is going to raise and I think it’s a very serious issue. But anyway, she’s appointed two days after Mr. Trump tells Attorney General Bondi that nothing is being done and justice must be served now and just three days after he called for Siebert to be removed. Three days after that, September 25th, Lindsey Halligan takes a proposed indictment to a grand jury, and Mr. Comey is indicted on two counts. And the grand jury actually rejected one, which is kind of unheard of.
So somehow between September 22nd and September 25th, during that brief period of time, she supposedly has gotten up to speed on how to be a prosecutor and figured out that this needs to be prosecuted, even though career prosecutors and the Office of Inspector General have been looking at this for a long time. So I think because of that sequence of events, that squarely. Indicates meddling in the process. And I think that is very different from the lack of real evidence of vindictiveness that Mr. Trump had in his motion.
Jennifer Anton | 18:56
So it sounds like what you’re saying is you think that Mr. Comey has a chance of prevailing in a motion to dismiss based on retaliatory prosecution or vindictive prosecution.
John Helms | 19:09
I do. I mean, it’s really hard to make a vindictive prosecution claim win, especially one where you’re talking about indicting someone, the typical vindictive prosecution claim is based on situation maybe where someone wins an appeal. And then the prosecutor adds on charges in retaliation for the person winning the appeal. It’s less common and less successful when you’re talking about an initial indictment but the public record here is very strong and I think that at a minimum a judge is probably going to give Comey’s defense team an opportunity to get discovery about the vindictive prosecution claim and potentially to get internal communications about replacing Mr. Siebert with Ms. Halligan and potential instructions, if not instructions, maybe Internal dialogue where miss Halligan is trying to figure out what to do something like that. I think there will probably be discovery of And I’ve talked to a former, very senior prosecutor from the Eastern District of Virginia. And he’s familiar with the judge that has the Comey case. And he believes that this judge is someone who could very well end up dismissing the indictment for that this judge has the potential to be to find Vindictiveness under the legal standards even though the law makes it very rare.
So I do think that there’s a chance. Again, these motions are hard to win. They don’t succeed all that often not very often at all really but there is a sequence of events that is really jarring if you know about criminal cases, criminal prosecutions, and how they work. And this particular judge is a former federal public defender in that district, and he will know how the process works, and I think he will see how extremely unusual this is.
So I do think that there’s a chance.
Jennifer Anton | 21:41
So let’s say that the judge denies the motion and allows the case to continue forward and it is not dismissed. Some people have said that the indictment against Mr. Comey does not describe any evidence against him and is weak. What do you think about the strength of the case overall against Mr. Comey?
John Helms | 22:05
Well, first of all, I don’t think that you can draw a lot of conclusions. From the indictment itself as far as the evidence supporting the case. An indictment is not supposed to describe the evidence against a person. An indictment is supposed to tell the person, here’s what you’re charged with so that the person knows what the charges are and knows what the charges are about and can prepare a defense to them. But it’s not supposed to be a roadmap of evidence or anything like that.
Now, sometimes we do see very detailed indictments, and prosecutors can do that for different reasons. One is, if it’s a high-profile case, they may want to show how strong their case is so that the public doesn’t, lose confidence that this is a justifiable prosecution.
So this is a bare bones indictment. And I think that really, I don’t take much from the fact that the evidence is not described in the indictment. However, As I mentioned before, Andrew McCabe, who is going to presumably be the government’s witness who would have to say that, testify that what Mr. Comey said is not true, He recently came out and said, you know, I’m really surprised at this, but they’ve indicted Mr. Comey and they didn’t even come to me. And interview me. And that is surprising because in a case like this, a prosecutor would want to interview or have agents interview their star witness to see what the person’s going to say. But they didn’t do that and in fact, Mr. McCabe has basically supported Mr. Comey’s story. And when I read the things that Mr. McCabe has said in the past about this, it’s not clear to me that he’s saying that Mr. Comey authorized. The leak or the excuse me, the use of the FBI agent as a confidential source, It suggests that it may have been something after the fact, after it had already been done, and not authorizing it in the first place.
So based on what I’ve seen and what I’ve read, I think it’s going to be a hard case to make. And I think that’s why the Office of Inspector General and the prosecution memorandum from the career prosecutors recommended not charging him.
Jennifer Anton | 24:56
So can a case vindictive prosecution happen against a regular citizen that’s not high profile? And if so, what should somebody do? If they think that’s what’s happening to them?
John Helms | 25:14
Well, I mean, the answer is there’s no principle of law that says that vindictive prosecution has to be, has to involve a high profile person. And in fact, many of the cases where it has succeeded have not been high profile cases. They’ve been just situations where a criminal defendant wins something on appeal. And there’s a new trial and then the prosecutors add charges, in retaliation for the person winning on appeal. That’s probably not going to be a high-profile case. That could be just a regular old case that maybe a prosecutor decides that they want to retaliate about.
So it doesn’t have to be a high profile case, but Keep in mind that you have to be able to show retaliation for some sort of exercising of your rights. In Mr. Comey’s case, he is going to claim that he was retaliated against by the Trump administration for all of the things that he said the past about Mr. Trump and what he believes was improper conduct by Mr. Trump, which is, of course, protected by the First Amendment. So if a person thinks that they’ve been retaliated against because they exercised some right of theirs, and they’ve been prosecuted solely for that purpose, they should talk to their lawyer about it, and they should work up a legal strategy and have the lawyer look at what evidence is there that the prosecution is really because of, you’re exercising a right. As opposed to simply because the police think that you broke the law. So talk to a lawyer when you’re going to need to come up with evidence that directly ties the prosecution decision to something that you did that is an exercise of your rights and that it’s retaliation for that.
Jennifer Anton | 27:25
Well, John, I thank you so much for being with us here today. This is a complicated issue with a lot of back history. Thank you for catching us up, for showing us. Your perspective and we look forward to having you again next time.
John Helms | 27:40
Thanks, I really enjoyed it. Thanks again for having me.