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I am your host on this broadcast.
This is our weekly weekend review of all things related to the rule of law and justice, the administration of justice.
The delivery of justice and yes indeed the interaction of government in so many ways big, small and in between.
I am as always delighted and honored that you have chosen to spend some of your weekend time in discussion and engagement with me and these and other issues.
I am joined in the Racine studio this weekend as always by my producer Max.
And together we're taking your questions
specifically inquiries about the matters on our ambitious but achievable agenda that phone number is 855-752-4842 once again that's 855-752-4842 and you can be a part of our discussion especially encouraging your questions your inquiries your follow-up
inquiries about the issues on our agenda this weekend because the agenda itself, while it is more limited than normal, it is expansive in terms of detail.
We spend a lot of time on this broadcast, sometimes in a very civics specific way, sometimes a very law school specific way, and explaining the rule of law issues, the challenges in America, and how we understand the events
of our times, this broadcast, this weekend is certainly no exception to that.
We're going to spend a lot of time talking about two different buckets of information, two different buckets of events from just this past week.
They are in many ways watershed events in American history and they happened this past week.
Yes, we're going to spend a lot of time
talking about the indictment of James Comey, the former director of the FBI, former senior official of the United States Department of Justice, not only describing in great detail exactly what happened here, exactly what we know about the charges against him, the relatively skeletal indictment that was returned by a grand jury.
We'll tell you a little bit about the process by which that happened.
We'll talk as we had last.
broadcast about the change in the U.S.
Attorney's position, the office there, from one attorney to another, and the result of that reassignment, that new appointment in Eastern Virginia that resulted in this indictment against James Comey.
We'll talk about the continuity between the story that we described last weekend.
having to do with the firing of the now former U.S.
Attorney, the appointment of a new U.S.
Attorney in that district, and yes, indeed, within almost hours, couple of days, candidly, the return of this grand jury indictment against James Comey.
We'll talk about what it means, what the content of it is, what the process is, what happens next, what the anticipated response is going to be, not just from James Comey, he has been on the media.
He has been on social media recently describing his defiance, maintaining not only that he is innocent, but he plans to go to trial.
We'll talk about the options that he has in the rocket docket in the Eastern District of Virginia to bring this case to trial very quickly.
We'll talk about why it is, that may be a very wise strategy.
We'll talk also about the merits of what we know about this case, where it comes from, trying to read the tea leaves on a not especially descript and expansive grand jury indictment, but nonetheless giving it some context from what we know about the timing of the events charged in the grand jury indictment.
What was going on at the time and who are the references in this fairly cryptic non-speak
grand jury indictment.
We're gonna talk about all of that because it's important to understand the specifics of this particular case, but secondarily, and I would argue even more significantly this weekend, the larger issue, the larger takeaway from the grand jury indictment of James Comey is the sliding of America into an authoritarian state.
authoritarianism, we will chat a lot about what that is and talk about the reasons why this particular event on Thursday of this last week, the return of this indictment,
plainly presented, apparently personally, individually by the new U.S.
Attorney there to a grand jury.
We'll talk about the dissension even inside the grand jury based upon a released note from those proceedings.
And then we are going to talk about authoritarianism.
We're going to talk about what that is, what that means in terms of a regime and the manner in which that regime, that political entity, conducts its business.
I will describe for you and make for you the offer that what happened this past week on September 25th is a watershed in the history, a watershed event in the events of American history.
And that when this happened, not only, not only for the significance of this particular case, but it changed America.
It changed America in a way that we can never again look back and say that we've got continuity.
It is a true watershed event.
And the things that happened as significant and as consequential and as challenging as they have been in the past eight months.
They are different now.
They are very different now as a result of this major decision by your Department of Justice, by your Attorney General, by your President, which is also one of the most significant aspects of what we're going to talk about this weekend.
A decision by your government to pursue political enemies.
Based not upon a legitimate review of the facts and the law, that was done.
And a determination may that there is no there there as we talked last week, but instead upon the encouragement of a president who is angry at a person and prompts the attorney general, the chief federal law enforcement officer in this country to turn around and direct the new US attorney in eastern Virginia to go after that political adversary of the president.
I would offer to you as we've talked before that that is not only a clear illustration of the complete destruction.
that has existed for decades between the White House and the Department of Justice, but it also indicates a breakdown in the rule of law in America.
If March 15th, March 15th of this year was the date on which we mark the entry, the sliding of America into a constitutional crisis, September 25th, 2025 is the date on which we identify ourselves sliding into an authoritarian government.
Those two dates, those two dates significant now significant in the future.
We're going to talk about why there is support for that basic thesis on
our show this weekend.
There is a lot to consume.
It is a lot.
It is important to understand not only what has happened here, but probably what will happen down the road will offer some perspectives on the motions, the defenses that can be brought consistent with that notion of the authoritarianism that now pervades our government at the highest level.
And then we're also going to spend some time talking about something else that happened down the street from the Department of Justice.
Yes, once again, at the United States Supreme Court, that building, that palace, if you will, on the Capitol Hill.
We're going to talk about a major decision, yet another one of those issued in the continuing movement of the shadow dock at these emergency applications there, yet another decision.
another decision of the Supreme Court finding that yes indeed even while underlying litigation continues to go on even while and after lower courts have said dispositively that the president cannot proceed with what he plans to do nonetheless Supreme Court intervening at the request of the president at the request of your solicitor general and not only overturning what those lower courts have done
on an interim basis, but also changing the ways not only in which that case, the particular case is handled, but changing once again the way the justice is doled out in America.
Yes, we're talking about that major decision of the Supreme Court permitting the president of the United States of America.
Contrary to law, contrary to the Constitution, contrary to what the Congress has said, contrary to precedent in our nation's history, permitting him to fire.
to fire a commissioner of the Federal Trade Commission will give you her name once again.
We'll talk about the litigation to this point that has affirmed her right to stay in that position.
We'll talk about what the Chief Justice did just this past week to give the president what he wanted.
And we'll talk about why that too is so significant, even in the wake of all of these other 20, 23, 24 different orders granting the president these emergency application orders.
We'll talk about why that's significant.
And yes, indeed, we're going to get into the weeds.
We're going to introduce to you another case, not just the slaughter case, which is the name of the FTC commissioner, who now is no longer in a position because of the Supreme Court's conduct and its behavior.
But we'll also talk about another case, another case from our own nation's history.
case is called Humphrey's Executor.
I'm going to offer to you that you need to get that concept, that Humphrey's Executor phrase into your brain and into your thoughts because it's not just a reference to a and now a old but still presidential case in our nation's history that established that yes indeed the Congress and the congressional action that it does
does have meaning the president does not have the authority to fire federal trade commission commissioners does not have this independent authority Humphrey's executor stands 90 years from the time of its decision for the proposition that there is a separation of powers and this past week this past week the united states supreme court indicated number one
that it appears not to care about that precedent, Humphrey's executor, that the Supreme Court itself put into place that limits the authority of the president to fire people over whom he has no authority, based upon congressional grants of authority and to an independent agency.
We'll talk about why Humphrey's executor, once again, Humphrey's executor, the name of this case, and will indicate to you what the Supreme Court will probably do.
in the coming term as it is placed.
This case, this slaughter case, this FTC case on its docket for the coming term that begins, as we all know, in just a little over a week.
First Monday in October, October 6, 2025.
Next...
weekend will give you a greater sense about exactly what the Supreme Court is going to be arguing in that first week, including many of the hot topic cases that we have discussed in our previous broadcasts.
But we're also going to note once again that the slaughter matter and the Humphrey's executive precedent that we have known about for 90 years that has guided the United States of America, that has established and reaffirmed the basic tenets of the rule of law that does
was indeed contemplate limited government and separation of powers and balances of powers.
is now also apparently on the chopping block.
We'll hear not only the specific thing that the Chief Justice said in reversing effectively the lower courts, but indicating that Humphrey's executor is on the chopping block, and then significantly in a continuing process that we've adopted here on this broadcast, I'm gonna read to you every single word that the dissenters have articulated.
In the dissent to what the Supreme Court has done comes from the
of Elena Kagan, and I'm going to present to you exactly, exactly what she has said.
It is a terrific piece of writing, not only because it explains all of this in the same law school, civics type way that we're going to delve into just ahead, but it also codifies for you in so many important ways the entire rule of law challenge that our nation now faces, the authoritarianism.
That is the premise and is the thesis of this weekend's broadcast to you.
All of that, all of that coming up here on the broadcast stations of Civic Media.
This is Amicus, a lot of you.
My name is Jim Santel.
You're listening to Civic Media.
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My name is Jim Santel.
I thank you once again for spending some of your weekend with me and my producer, Max, as we talk about some of the watershed events of our times, including just this past week, the indictment of James Comey, former senior leader of the Department of Justice, former director of the Federal Bureau of Investigation, initiating in that capacity the now seemingly old investigation of
the possibility of Russian interference in the 2016 election.
We'll get to that in just a moment or so.
We're going to be chatting not only about what exactly happened this past week.
We'll give you some sense of the content of the indictment, what will probably happen in the days and weeks and months just ahead, and then begin to give some broader perspective to why this particular indictment is indeed a watershed event.
in the history of America watershed taking its name its application here from geography and the movement the channeling of waters from one place to another the separation of drainage of waters things before different from things afterwards that's a watershed event a major shift in direction separating separating history from
present events.
That's what we have here.
So how do we get here?
Well, last week, you may recall, we talked at great length about this change in the leadership of the U.S.
Attorney's office, one of the 93 in the nation, the U.S.
Attorney position in the Eastern District of Virginia.
It's right across from Washington, D.C.
If you've flown in to Reagan National Airport, you have been in the Eastern District of Virginia.
If you have taken a tour at the Pentagon, if you have been in Roslyn, other places, that's the Eastern
and District of Virginia has offices in Alexandria right there.
And it's also a major place for prosecutions that derive from government officials, their work, their conduct, government employees, government functions, because of its proximity geographically to Washington DC.
Again, quite literally you can see the Washington Monument and the Lincoln Memorial and arguably the Capitol and even beyond that, the Supreme Court building
from a perch in the Eastern District of Virginia.
It is right there, basically, a part of our nation's capital.
And it is in that setting that the president
if you believe his account fired last week, as reported, the then existing United States attorney, his name is Eric Siebert, much connected to this Department of Justice, much connected to a fellow named Emile Beauvais, who was basically the leader of the Department of Justice in the early days, now on the Third Circuit Court of Appeals, very much connected.
This is not a disconnected holdover, for example, from the Biden administration, a part of the mechanisms inside the Department of Justice,
support by the Attorney General, by the Deputy Attorney General for being right there, support from senators on Capitol Hill, commented on by the President who says, you know what, I don't like the fact that we've got Democrats in the Senate who are supporting Eric Siebert, that's his name, and for that reason he's gotta go.
Well actually, actually the reason why Eric Siebert, according to his own account, resigned,
The reason why, according to his account, the president decided to fire him was because Eric Siebert made a prosecution decision.
He did what's called a declination.
He declined to do something.
US attorneys do this all the time.
It is not in the public domain.
Why?
Because we do not get out and say publicly, we have decided not to indict a person or an entity, a corporation.
We have closed an investigation without finding any indication of criminal
conduct or criminal activity.
That is the appropriate way to do it.
Why?
Because you're not tainting the reputation.
You have all seen those headlines in the news.
A person is under investigation.
No charges come of that, and yet that taint lingers.
Inside the Department of Justice, it has been policy for decades not to go public with declarations.
except in those situations where there was a public need, a public interest to know about those.
Well, the president has created that public interest by identifying his political adversaries.
He did it during the campaign.
He continues to do it in truth social statements, publicly in statements on the media.
He has sent statements in the media and in public statements to his very attorney general.
frustrated by the fact that his political adversaries have not been prosecuted by this Department of Justice, including a now withdrawn text on his own truth social platform, encouraging, urging, asking his Attorney General to go ahead and prosecute people who have been his adversaries among that group.
has been Letitia James.
She is the attorney general of the state of New York and James Comey, the former director of the FBI, again, who initiated that Russia investigation and has also run afoul plainly of the president in other ways by refusing effectively to pledge his allegiance.
to the president as opposed to the allegiance to the United States of America and to the people of our nation.
Eric Siebert encouraged to and does for months in concert with the FBI, investigates if there's anything there to see with respect to James Comey and others, including Letitia James, arguably.
arguably others also on that list, which appears to be expanding even in this weekend.
What he does in the end is he says, I found nothing.
There's nothing in this file, nothing we have been able to turn over in terms of interviews, in terms of review of documents, in terms of examination of anything that may be out there that suggests that James Comey committed a crime.
And because of that, we are declining the declination decision that we're declining to prosecute, and that's what he did.
And shortly after that, of course, that gets the attention of the president who says, I'm firing you, Eric Siebert says, I'm leaving, and he is gone.
And the president then appoints.
someone who is indeed another loyalist of his.
We know her name is Lindsay Halligan, H-A-L-L-I-G-A-N.
She is close to the president not only because she has been inside the White House, she is one of his legal counselors there, but she has also been a part of his history as well.
She's one of those who denounced the FBI when it sees those classified documents in 2022 at Mar-a-Lago.
We'll tell you more about Lindsay Halligan, who is now the U.S.
Attorney in Eastern Virginia.
doing the president's bidding and indeed, that's exactly what she did.
This past week announcing then an indictment of James Comey, all of that, as Amicus Allah Review continues.
My name is Jim Santel and this is Amicus Allah Review here in the broadcast stations of Civic Media.
We are necessarily appropriately spending a great deal of our time in this weekend broadcast talking about the significance the import for the rule of law for the future of our nation of this indictment seemingly a small event in the history of America but huge in terms of establishing clearly
the authoritarianism that is now our government.
Let's talk more about the process by which we got here.
We have the interim U.S.
Attorney, newly placed there by the president.
He has the authority to do that.
She has not yet been confirmed, but you can do that under the rules and the laws of these kinds of processes.
Her name once again, Lindsay Heligan.
She has up to this point been inside the White House.
She is a lawyer there.
She previously was one of those folks who did
when the FBI seized those documents.
We're back in 2022 from Mar-a-Lago.
She has also as a special assistant inside the White House up until this past week, a lawyer there has taken one of the leads in scrutinizing exhibits from the Smithsonian Institution for, as she has described them, improper ideology.
She is a lawyer.
She is an insurance lawyer.
And that is good and decent and appropriate work.
And it is important work in any jurisdiction of the United States of America, including Florida.
which is where she has practiced for much of her career.
It is not prosecutorial work.
It is not involved in trial work, not presenting cases to a grand jury or to a pettit or trial jury.
Prosecution is not a part of her experience.
President Seizes upon her describes her as a tough, tough prosecutor, even though there's nothing to suggest that that is a part of her past.
And indeed, indeed,
The president gets from her what he did not get from Eric Sebert, the now former U.S.
Attorney in the Eastern District of Virginia.
It is an interim U.S.
Attorney appointment.
And this happens significantly once again after the president makes clear in public statements on his own social media posts that he is upset.
He berates the attorney general, Pam Bondi, as late as Saturday of this past week for not moving more aggressively to prosecute people like James Comey and people like Letitia James, the New York attorney general, and Adam Schiff, a Democrat, a senator from the state of California.
She plainly is briefed on the case.
She is in the U.S.
Attorney's office.
She has the authority now to do these kinds of things.
That is to authorize prosecutions, and that's exactly what she did.
And in somewhat of an unusual proposition, a procedure here, not unknown, U.S.
attorneys do have the authority to do this, but typically it's assisting United States attorneys who actually present cases to the grand jury to determine whether or not there is probable cause to indict.
Grand juries, of course, are these groups of people up to 23 members, 16 needed to conduct business.
They are called in from the public at large.
They are there to determine whether or not.
The government has indeed offered to them presented to them evidence of a crime Probable cause is the assessment that is plainly not the highest level of proof needed We know about the trial proof level.
That's beyond a reasonable doubt This is probable cause and yet yet grand jurors have a role to play as you have heard me say on many broadcasts in the past grand jurors
do not do not simply indict ham sandwiches it was my experience for 30 years presenting to grand juries in the eastern district of wisconsin that every single one of them takes their job incredibly seriously ask questions of witnesses ask questions of
the agents who are there, ask questions of the prosecutors, including me as an assistant United States attorney, questions the things that are before them, and then make determinations, yes in private, yes without, without the presence physically at that time, they vote on whether or not an indictment should issue, and if so, what that should look like.
It is not the case.
and reject the notion to the extent that you see it, that it is a simple and easy thing to get an indictment.
Indictments, again, are not subject to the rigor of the adversarial process, sometimes perhaps appropriately bemoaned by defense counsel, but my experience, grand jurors take their job seriously.
And what happened in this case is that they did just that.
They plainly were presented, we don't know exactly by,
by what the testimony was entirely possible it was presented through what's called hearsay testimony and yes indeed there's nothing wrong in the grand jury process for an agent there to summarize the results of investigation that may have been done here we don't know we may find out at some point down the road when the transcripts of what happened are released in the context of the trial of this case
It may well be that a special agent of the FBI summarized all of this.
That's appropriate.
And the grand jury's jurors then reviewed all of that.
And the presentation then made, again, not completely unprecedented, but somewhat unusually, by Ms.
Halligan herself, U.S.
Attorney Halligan, actually presented the case against James Comey to the grand jury.
That according to some reliable reporting coming out of that process.
Nothing wrong with that.
but unusual in terms of its presentation, especially coming from an office where plainly, Eric Siebert, the former U.S.
attorney, was surrounded by people, including prosecutors, including agents who said there's no there, there.
There's nothing to see here.
And it's entirely possible that the reason why the U.S.
Attorney, again, within her ambit to do it, she's got the authority to do justice, herself presented this case to the grand jury.
What else do we know?
Another peculiar thing happened here, the judge presiding over not the events right inside the grand jury, but responsible for the administration of the grand jury system there.
Remember once again, grand juries are not entities of the Department of Justice, they are entities of the
courts.
They're a part of the federal court system.
They're a jury, as is a trial jury.
And so what we have here is the presiding and ministering magistrate judge releases some notes of the grand jury's determination.
And it turns out that in part, one of those notes indicated that among the counts presented by the U.S.
attorney to the grand jury for consideration was one that they did not adopt.
independently determining that, no, we're not going to indict on that count.
Also some indication that there may not have been unanimity even on those counts that were indeed indicted.
Some indication, according to the Note 12 or more grand jurors, did not concur in finding the indictment in count one.
We're not quite certain what that reference may be to, but plainly, once again, affirming my thesis for you today that this was a grand jury that was doing its job.
Even if presented with hearsay evidence, again, that's permissible.
Not necessarily hearing as you will at a trial from the individuals whose testimony is summarized by the agent who's appearing in front of them.
We'll see what that all looks like.
Lindsay Halligan, the U.S.
Attorney, presents this.
And yes, indeed, she does obtain a grand jury indictment in this case.
And it is a two-page grand jury indictment.
It is fairly skeletal.
It does the job.
to the extent that it goes down that road.
I'm going to read to you some portions of it because it's very simple.
It comes in the Eastern District of Virginia thinking, well, gee, why?
Why Jim is going on in the Eastern District of Virginia?
Because it relates, as you will hear, to statements made by James Comey in the context of a congressional hearing way back in September of 2020.
And once again, you're thinking, wait, Congress is in Washington, DC.
That's across the Potomac River in our nation's capital.
Why is this case indicted?
Why is it venued to use the legal term in the Eastern District of Virginia, the Alexandria Division?
The answer is, this was COVID time.
And so the Congress was conducting an investigation, a review, an examination, some oversight of matters, and doing it by Zoom.
And while many of the senators were there at the Capitol, again separated with many of them with masks and doing all those things that we were appropriately doing health-related concerns in September of 2020, James Comey was at his home, his personal home in Virginia, in eastern Virginia, and it was there that he provided testimony
In particular, responding to questions of one of the senators, his name is Ted Cruz.
He, as you know, is from Texas.
So what does the indictment say?
The indictment is in two counts.
Basically the first one is under 18 USC section 1001.
That prohibits the making of false statements to the government.
Says this, honor about September 20th in the Eastern District of Virginia, the defendant, James B. Comey, Jr.
willfully and knowingly made a materially false fictitious and fraudulent statement in a matter with
in the jurisdiction of the legislative branch of the government of the United States of America.
By falsely stating to a US senator, again, we believe that's Ted Cruz, during a Senate Judiciary Committee hearing that he, James Comey, the defendant here, had, again, this is quoted here, had not authorized someone else at the FBI to be an anonymous source in news reports regarding an FBI investigation concerning
person one.
There's a lot there.
There's a lot of language there.
And again, we're not given a lot of specificity on exactly what that means, but it plainly has to do with some allegation here that James Comey lied, made a false statement knowingly, willfully, we'll get back to the content of proof of false statements in just a moment or so.
Lied to the senators, lied to the Congress about whether he had authorized someone else.
We think that may in fact be a fellow named Andrew McCabe.
Who is his deputy?
You may have heard of him in the past.
Maybe a fellow named Daniel Richmond Comey has also designated him as a special employee at the time We don't know their names.
We'll get back to that in just a moment or so But he had not authorized someone else at the FBI those people to be an anonymous tip and some news report related to an FBI investigation could be likely related to the 2016 election maybe having to do with things related to
the matters that were before him as the director of the FBI, some references to Hillary Clinton, some references to Donald Trump, all of these things we don't know with specificity.
It goes on to see the statement is false, however, because James Comey, the defendant then, and there knew that he in fact had authorized this person.
Person number three, another person unidentified here, maybe that's Andrew McCabe, to serve as an anonymous source in a news report regarding an FBI investigation concerning person one.
So we've got lots of cryptic references to people, not identified by names, but the allegation here in violation of section 1001 allegedly is that James Comey told the senators that he had not authorized this other person.
to engage in some anonymous report, some news tip.
to the media when in fact, when in fact he had done just that.
That's the nature of the false statement alleged in the indictment.
It's a lot.
It's very walky.
It's very much down the rabbit hole and it is very specific.
We'll get back to the concept of materiality in just a moment.
There's a second count.
It's under section 1505, obstruction of congressional proceedings.
It's based upon the same exchange that I just outlined again cryptically because that's as cryptic as the indictment.
is September 30th, again Eastern Virginia.
He's at home, he makes these statements to the Senate Judiciary Committee, says he did corruptly endeavor to influence, obstruct, and impede the due and proper exercise of the power of inquiry.
under which an investigation was being had before the Senate Judiciary Committee by making false and misleading statements before that committee in violation of Section 1505 of Title 18, which is the criminal code.
A second count in the indictment very much related to paralleling the first one, obstruction of a congressional proceeding by virtue of lying.
You might call it perjury, this technical
way in which this is charged is false statements.
That's the 1001.
Keep that in mind.
That's the 1001 violation there.
And it is obtained.
It is obtained by this U.S.
attorney presenting this.
Nothing inappropriate about it, but somewhat unusual and is returned and then released into the domain.
When we come back, I'll tell you more about what happens as it comes into that.
public domain, what happens next in this case, and also answer at least one or two questions coming in from you about how this all happened, which we appreciate very much here on Amicus,
a lot of you.
This is Amicus, a lot of you.
We are marching through this watershed event in American history just this past week, the return by the grand jury, presented by the United States Attorney of an indictment against James Comey.
The indictment as we're indicating alleges and two counts the making of false statements before the Congressional Committee the Senate Judiciary Committee and obstructing the proceedings by virtue of making those false statements are more accurately false statement We don't know a lot about it, but it appears to be based upon the allegation that James Comey had not Authorized someone in the FBI to talk to the press an anonymous tip when in fact he had
And if that strikes you as fairly particular and maybe even fairly inconsequential, I think there are an awful lot of people who would join you in that view.
Let's get to a couple of thoughts on the process here and then get into that very issue.
Appreciate very much Jim asking the question.
Jim from Appleton, he understands that this is somewhat atypical in terms of the way that this was accomplished again.
Unusual, but not atypical for a U.S.
attorney himself, or in this case herself, to present cases before the grand jury.
Also, Jim asks about the signatures on the grand jury indictment, fairly routine.
What you get is a reference to a true bill that's legal speak, that's grand jury speak, for we are returning an indictment is a bill
identifying charges against an individual.
In this case, James Comey, it is true.
A true bail, there's a colon after that.
There is a line for the four person.
That is redacted in the official, the public release of this grand jury indictment.
Why?
Because we don't identify who those grand jurors are.
Even the four person is not identified.
There was a bit of a reference you can see just below the redaction.
There is something of a line.
So there's a signature there.
for this purpose.
Nothing unusual about that.
Nothing unusual, Jim, about the other piece of this, which is that Lindsay Halligan herself signs off on this as U.S.
attorney.
That is quite typical when I was U.S.
attorney for about six and a half years or so.
I did that routinely.
It can be delegated to other people upon a proper delegation, typically to a criminal vision chief, to a first assistant.
But routinely, routinely, I also signed off on indictments.
Not that I voted, not that mine was a vote that's
somehow was involved in the deliberation by the private review of the grand jury, but simply that I concurred in the presentation of this and supported the presentation in the way that the indictment is drafted.
And Lindsay Halligan here has signed off on this underneath the signature of the four person.
That's the answer to the appearing before the
grand jury and also signing off on the charging documents.
Nothing there particularly significant can be done and is done fairly routinely.
What is significant of course is and the reason why we get then necessarily into what this is going to look like down the road is this is an allegation of false statements.
What do we know about false statements again charged under the federal criminal code?
four different touchstones.
Four things the government has to show, not only to the grand jury here, the grand jury had to be satisfied to the probable cause degree that these things were met, maybe by the testimony of a special agent, maybe by some fact witnesses we don't know.
Four things have to show.
Number one, the defendant made the statement under oath.
probably fairly easily proven.
James Comey took the oath of office and said, yes, I'll tell you the truth.
That one's fairly easy.
Second, that the statement he made was false.
This is the big one, right?
The statement he made about not, in fact, authorizing somebody else to release something to the media.
Again, we've got one thing piled on another, that that statement has to be shown to be false.
It's simply wrong, demonstrably so.
Not the kind of thing that people might disagree with, not subject to interpretation, not subject to the kinds of whims that you might apply to linguistic gymnastics and speech and the ways in which people talk.
The statement was wrong.
The sun does not, in fact, rise in the west, that kind of thing.
Statement demonstrably wrong and false.
Third, the defendant knew it was false.
Jim, call me.
We have to show that he knew that the statement was false.
The government has to show that.
That's the knowledge.
That's the intent piece that Jim Comey, when he said that he did not authorize anybody to release something about this investigation to the media, that when he did that, he had no knowledge.
Number one, the statement wasn't false, but number two, he had no knowledge.
He had no intent to make a misstatement to Senator Cruz, to the Judiciary Committee.
The knowledge, the intent has also got to be there.
Got to show that the defendant, James Comey, knew that the statement that he was making was false and did it anyway.
And fourth, and this is also the big one, the statement has to be material to some legal proceeding.
Wow, that sounds like a lawyer talking and it is.
And it also sounds like a grand jury talking and it is.
It sounds like a U.S.
attorney talking and it is.
What is materiality all about?
It cannot be.
It cannot be as a result of...
of some mere mistake or faulty memory.
Again, that goes to all of the elements.
There has to be, as I said, an intentional lie with some purpose to deceive.
That's what the intent is all about.
And then what is materiality all about?
It's got to have to influence the outcome.
Something that matters in something that's significant.
It's got to make a difference in your understanding of some disposition, some decision to make.
It's got to be, once again, to mix words here relevant to the proceeding.
in some way, it's gotta be able to influence the very outcome of the presentation.
If, in fact, the statement is inconsequential, doesn't mean a lot, it's not material, and therefore, there's not a false statement under the federal criminal code.
Materiality is huge here, and that will also certainly be a basis upon which this case is defended, that is that this statement
Number one was not false, according to Jim Comey's own statements publicly, that number one, it wasn't false and therefore you didn't know it was false.
You don't have number three even kicking in.
And number four, that even if you regard this as somehow a false statement, it wasn't material to anything.
And in fact, false inside a larger exposition, a back and forth between senators and Jim Comey at the time this proceeding.
When we come back as our second hour goes forward,
Talk more about what's going to happen now, indeed, including an arraignment on October 9th before the District Court Judge will identify him.
We'll talk about the motions that are going to be coming and what may happen in this indictment as it goes forward here on Amicus, a lot of you.
This is the second hour of our weekly weekend broadcast about all things related to the rule of law in America.
the administration of justice, and things related to those all-important principles, including things related to criminal process, constitutional procedure, all of that, wrapped up in what is always turning into our civics class, our law school class, again, necessary to understand what's going on here.
Spend some time in the first hour talking about the things the government is now obliged to prove.
The U.S.
Attorney,
through her own work, through that of other people in the office have now got a percent ultimately to a trial jury in the public domain evidence, not only that the statement that James Comey made about not providing, not offering this tip up, not encouraging someone else to engage in the media that that was false, that he knew it was false.
And again, this materiality notion that it's gotta somehow be a statement that would have influenced the outcome.
In this case,
the presentation to the Senate Judiciary Committee back in September 2020.
What did that misstatement, assuming it is, that false statement do to change the course materially significantly?
How did it matter when it comes to the representations being made allegedly falsely by James Comey?
That's now the government's proof.
That's their burden that they've got to establish at a trial.
James Comey doesn't have to present anything at all in the pre-trial proceedings or in the trial itself.
Let's talk about what happens next.
Well, this case has been assigned now to a judge.
He is a federal district court judge.
He is there in Eastern Virginia.
Not in Washington, D.C.
He's in Alexandria.
And his name is Michael Nakmanoff, N-A-C-H-M-A-N-O-F-F.
And Judge Nakmanoff has already scheduled an arraignment for October 9th.
That's gonna be a busy week in American history once again, also the week in which the Supreme Court reconvenes for a number of oral arguments.
Again, right across the river there in Alexandria will have James Comey and his lawyers.
are going to be appearing in a federal court.
And that is for the arraignment.
He will almost certainly plead not guilty.
And we may get some sense there of the things that will happen next, the plans of the defendant to not only defend against this case, but to do so vigorously.
We know that James Comey has already gone on social media, not only to invoke
the words of his daughter at the time of her condemnation of this president's actions and of the Department of Justice, but also to offer to all of us that we keep faith and offering in many ways the notion that he understands what this is, that this is a political prosecution, that there's no there, there.
That's his position.
That's what he will plead not guilty.
That's the reason why he will enter that not guilty plea on October 19th at that arraignment.
Now, what else is going to happen?
What else he's going to do through his attorneys?
in between now and then, and the days after that.
A number of different options here.
I bemoaned the fact already that this particular very skeletal indictment doesn't give us a lot of insight into who these people are, person one, person three.
We've got a sense of that based upon news reports at around the same time, giving you some thoughts about that, but could entirely be different.
And the government is obliged to provide the defendant as always with all the information it has to support the allegation.
in these two counts in the indictment and if that information is not clear enough or even if it is likely likely the defense acting on behalf of James Comey will file a motion for what's called a bill of
Particulars, particulars, that means just what it sounds like and sounds just like it means.
We're asking for a more particular statement of exactly what the nature of this false statement is.
How did he obstruct?
What is this all about?
Tell us in great detail, identify who these people are, these unidentified people in the indictment, and give us an explanation of, for example, the materiality of this allegedly false statement.
Describe that in greater detail.
Tell us the reason why it was false.
Tell us the reason why your evidence supports, again, probable cause at trial has to be beyond a reasonable doubt.
Give us those particular things that are not in this indictment.
That's one of the motions that will almost certainly be filed, maybe even before October 9th.
Here's the other one that's out there, and it comes basically premised upon all the things that the president, to some extent, the attorney general has said.
Not only in history, but also recently.
And they're the statements from a president who plainly is pursuing this, again, plainly, unmistakably, because of the animosity, the political animosity between him and James Comey that goes back.
goes back to the days when James Comey was the FBI director in the first Trump administration.
Comey's indictment is problematic for the government for these reasons, perhaps even more than all this materiality and false statement and knowledge issue that I've already discussed.
Comey's lawyers very likely are going to seek a motion, are going to present a motion and going to seek the dismissal of this case for what?
For selective prosecution.
For selective prosecution.
That?
the notion that the cases being and the defendants being improperly targeted for an impermissible reason, not because the facts in the law support allegations beyond a reasonable doubt by probable cause, but because there's something else that's not related to the rule of law, not related to justice, not related to the facts and the application of the law to that, and that is selective prosecution when you are identifying a prosecution of this defendant
despite others who might be similarly situated who are not being charged.
Now that's part of the possibility here.
The other portion of it also deriving from all these things that our president has said is that the president's statements themselves suggest an animus that
proceeds through this investigation and prompted the very presentation of this indictment to the grand jury, going to make a lot of hay out of the fact that Eric Siebert, the former U.S.
Attorney, looked at all of this.
His colleagues there in the U.S.
Attorney's office looked at all of this.
FBI special agents looked at all of this and said there's no there there.
The President installs a loyalist from the White House in that position and within days,
Frankly, ours and indictment is returned.
That is information that the defense is going to raise.
It is procedure, it is a part of history, and it underscores their position that this prosecution is not premised upon law and facts, that in fact, the government can't prove those four elements beyond that, that this is simply an animation.
This is political retribution.
And you'll hear that word in their motion.
Donald Trump's own remarks are going to loom large in this presentation, this defensive presentation by the Defense Council.
Nothing wrong with that at all.
You seize them from the public domain, whether it's on CNN or Fox News or the New York Times, the Los Angeles Times, wherever it is, reliable news sources confirming from the president's lips themselves from his own mouth, the things that he has said about James Comey over the weekend.
over the weekend, for example.
The president preemptively declared on social media that James Comey and Letitia James and Senator Schiff were all, in his words, guilty as hell, but nothing is going to be done.
He's bemoaning the fact that nothing is done before this enlightenment is returned.
A prejudicial statement like that is going to loom large, as are many others.
It's going to be featured in their motion to dismiss for, call it what you will, prosecutorial misconduct.
governmental misconduct, pursuit of the rule of law in a way that's inconsistent with our fundamental standards under a constitutional system, featured in that motion undeniably accusing, telling the world, telling the Department of Justice that it is taking part in an improperly vindictive and retributive prosecution.
That's what this is about, not based upon justice.
That's going to be the principal motion here.
Speaking to reporters in the Oval Office on Thursday,
Donald Trump insisted that he had no control of the prosecution.
None whatsoever.
Well, he shouldn't be talking about this at all.
The wall again between the White House and the Department of Justice has not only been broken down, it's been destroyed.
With overt statements by our Attorney General, by the President, that is gone.
That has animated the administrations of all previous presidents with the exception of Donald Trump in his first term.
Here's what the President said.
He said, I can't tell you what's going to happen because I don't know, although he signaled that he wants his attorney general.
He wants his newly installed US attorney, used to be there in the West Wing, to do his bidding.
He said, he said this, I can only say that Comey is a bad person.
He's a sick person.
I think he's a sick guy, actually.
And in fact, the history of this, the watershed moment happens about seven hours later.
when James Comey is indicted.
That is a set of facts, historical things that are gonna be presented by the defense to show that this is an illegitimate prosecution, asking Judge Nakmanoff to get rid of it, to dismiss the case entirely, anticipate that coming in, in addition to requesting more information, the bill of particulars, and here's the other portion of this.
Here's the other portion of all of this.
James Comey has said, let's go.
He wants a fast trial.
Now, you know, because we've talked about this before, that under the federal system, there is a thing called the Speedy Trial Act.
It requires, believe it or not, that every single criminal case be tried within 70, 70 days.
after, after an initial appearance, after the case begins.
Now, that's very, very often not violated, but the judges often find bases upon which to extend that to find what's called excludable time for motions, Penny.
You've got to resolve those, all sorts of other things under the law.
properly invoked by the parties, by the prosecution, by defense counsel, by the judge, herself or himself, to find that that 70-day period cannot be met.
Nothing wrong with that.
That's legal.
In the eastern district of Virginia, where this case is prosecuted, there's also a thing called the...
rocket docket.
And yes, it's a euphemism for a very expedited process.
And again, with all sorts of trappings related to it, it's in the local rules over and beyond what's in the Speedy Trial Act.
There is contemplation, again, upon invocation by a defendant.
I want my case tried even more quickly.
I want my case tried within 30 days.
30 days is the rocket docket in the Eastern District of Virginia.
James Comey, in his statement to the world on social media, denying these allegations, invoking once again the important words of his own daughter, talking about his status and being concerned about the future of America, also said, let's go.
He is presumably signaling that he, through his attorneys, may ask the judge, Judge Nachmanoff, to schedule this on for a very quick trial.
Let's go.
Well, that's where you need to get all the discovery.
We need to get that bill of particulars.
And yes, we're going to file our motion for improper prosecution, inappropriate prosecutorial conduct here, executive involvement in a way that it should not be, but also let's pick a jury.
Let's go ahead before the end of the year and try this case.
It's not that complicated, he's saying, and we can identify in this very narrow allegation the singular thing that I said that I did not authorize the release of this information to the media.
Let's focus on that.
It'll probably take longer to select a jury than to present whatever the government's evidence is of that.
James Comey can take the stand and say also, if he wants to,
as is his right, that this didn't happen.
And let the jury decide this.
He wants to go.
And that may also be a part of the strategy that we will see here.
Ultimately, Judge Nakmanoff is the one who decides that.
And he is the one who make the determination in the end, but that's upcoming.
That's upcoming.
When we come back, we'll talk more about the implications of all of this, not only for this particular case, but for America, this watershed event in our history that happened just this past week, all of that coming up on Amicus, a Law Review.
My name is Jim Santel.
This is Amicus, a Law Review.
spending a good deal of time on this event in American history just recently the indictment by a federal grand jury in eastern Virginia of James Comey describing what's going on in that case but then
Getting to the larger implications of this including including the connection between the president of the United States of America and these charges We have spoken about that in great length in the past this notion ever since Watergate since 1973 1974 Watergate reforms establishing norms by which a president should not be able to command to direct
the prosecution of people in America.
Why?
Because you want that to be based upon the facts and the law.
Want that to be done by people or experts who know what they're doing.
Want grand juries to make determinations premised upon the facts and the law.
Do not want it to be infected by political animus, unlike what's going on here.
And indeed, in addition to the things the president has said about James Comey,
Prior to this indictment, we know that right after the return of the indictment, once again, he cannot be quiet.
He posts on his social media outlet, Justice in America, all capital letters exclamation point.
Justice in America, celebrating the notion which I've always described as human tragedy, any prosecution in America, regardless of who it is, what the circumstances are, it is all human tragedy, it is necessary,
Absolutely, as a part of our law enforcement process, but it is human tragedy.
My president celebrates this justice in America.
Also, of course, understanding and underscoring that he is directing what's going on with the Department of Justice, not only to Pam Bondi, not only to his former attorney, Todd Blanche, the deputy attorney general.
Not only to his newly installed U.S.
Attorney in Eastern Virginia who went into the grand jury and at his bidding got the very thing the president wanted, which is indictment against his adversary, James Comey.
All of that, all of that we presented in motions asking the judge, asking the judge in Eastern Virginia to get rid of this case.
Who is this judge?
Well,
He has been on the bench for a few years, former federal public defender, former magistrate judge there who does a lot of the pretrial work.
Interestingly, just about of his history, a footnote to all of this.
Again, going back to the time of the first Trump impeachment proceeding, this is the judge who also handled the arraignments, just as he will do on October 9th of James Comey.
He handled the arraignments of these two fellows, Lev Parnas and Igor
Fruman remember them Lev Parnas and Igor Fruman.
They were charged with funneling these foreign funds into us elections He handled the arrangements of those two and other proceedings other cases during his time plainly on the bench there in eastern Virginia He is going to be presiding over the arraignment on October 9th That's the time when James Comey will come in with his attorneys
It may be a completely uneventful proceeding covered plainly hugely by the media on that day, but we may also get some hints again about what the defense strategy is here.
It's entirely possible they may ask the judge invoking the rocket docket, invoking the speedy trial act to say, judge, we would like this case to be tried before the end of the year.
We'd like it to go quickly.
Let's go to trial.
Let's present this case.
It's relatively straightforward.
It's skeletal in nature.
It has to do with the exchange of a question and an answer by this defendant, and we'll figure out whether or not it was material, whether it was false, whether or not the defendant knew it.
Let's make the government prove that case.
Let's go ahead.
They may do that, they may also file motions again, selective prosecution, vindictive prosecution, inappropriate animus for a prosecution, all of that, asking the judge dismiss it, a bill of particulars as well, asking Judge Nachmanoff to do all of that.
We'll see what happens.
That may indeed happen, some of that, even before October 9th.
What happens in addition to all of this that adds
force to this notion that we are now in this authoritarian state in America as evidenced by the fact that now our president, after threatening investigations, opening investigations of people, has now begun at his direction to indict people who he does not like.
And in that connection, we know that even while all this is going on, other things coming out of the White House, Justice Department officials pushing prosecutors around the nation to investigate George Soros' foundation.
Senior Justice Department official has confirmed that about a half dozen U.S.
Attorney's offices have been directed to draft plans to investigate a group funded by George Soros.
He is the Democratic donor.
He's a billionaire.
who has demanded that the president has demanded that he be thrown in jail, those U.S.
attorneys in various places like California, New York, Washington, District of Columbia, Chicago, Detroit, and Maryland, all of that, all of that at the encouragement of this Justice Department.
Open investigations, see what you've got.
because the president wants George Soros investigated.
We know as well late breaking news that the Trump administration is also seeking information on Bonnie Willis.
Remember her from the Georgia prosecution?
They're looking for their subpoenaed records related to her travel history.
She is the Georgia D.O.N.S.
again, who charged the president with a sweeping election inference case.
That's the RICO case.
The scope of that investigation is not clear, but that happened also.
The president has also indicated and said in the public domain, all sorts of hugely critical and condemning things about Finie Willis.
And then there's this.
The president has also ordered with the deputy attorney general and the attorney general right behind him.
Justice passed Thursday with the FBI also there.
He's ordering what he called a broad effort to root out groups, he says, organize political violence.
President Trump announcing that he wants the Department of Justice to investigate what he claimed were rich people and organizations funding left-wing political violence around the country.
He tells the authorities, tells the folks in the FBI, the Justice Department and the Treasury Department to find and prosecute activity, the institutional and individual funders, officers and employees of organizations that are responsible for criminal conduct.
All of those accusations akin to the things he has said to James Comey, also a part of the authoritarian
regime that is now in place clearly unmistakably as of this week.
When we come back, we'll tell you more about that here on Amicus Alar Review.
My name is Jim Santel.
This is Amicus Alar Review.
We are spending
The great majority of our time talking about this watershed event in American history that is the indictment of James Comey not only in and of itself important but for the message it sends to all of us concerned about the rule of law and the conduct of the president who is not only reaching into but directing the Department of Justice when it comes to the prosecution of people in the United States of America
Right now, it is James Comey.
There are others plainly on his list.
He has denied that there is a list, but he's identified people like George Soros and Fannie Willis and other groups out there, Letitia James, Adam Schiff, others who have also been his adversaries over the course of the past decade or so.
They may also fall prey to this kind of abuse of the system, abuse by an authoritarian government.
We appreciate very much the conduct of those people in our government who may push back on this kind of thing, including federal judges, including grand juries, including prosecutors who are saying no.
That is the continuing struggle there, the guardrails that continue to push back on this kind of behavior that is not to say that it is not here at the same time.
We also appreciate very much those of you who
offer questions, inquiries, comments, and that includes Mark.
You've been on the line for a while, Mark.
Thanks for joining us here on our broadcast.
Go
ahead.
Yes.
The animus, at least for James Comey, at least traces all the way back to, I would say, back to 2017 when Comey refused to drop the investigation of Michael Flynn and Paul Manafort, both of whom were actually convicted of playing footsie with the Russians.
to put a mildly plain footsie with them.
You know, Trump has maintained there's been no connection between him and the Russians, and it certainly is belied by that fact that those two men were actually convicted, and he says the Russia-Russia-Russia thing is just a hoax, hoax, hoax.
Well, apparently, I don't think it actually was a hoax.
I don't think the Mueller report would indicate there was a hoax.
But the animus here is just clear that he's going against all these people on the tragedy.
colby's doing things right demanding his sixth amendment right to it a speedy trial but the problem is that the trump had unlimited funds to go after these people and you can operas the people he is going after because of the sadness he has and just keep going after the going after them and uh... people people do not have unlimited funds to defend themselves which they need to have first-class defense to defend themselves in these cases and uh... the crime here is that these people are going to be out of pocket for this is this a lot of money
and Donald Trump can just keep going on and on like he has done his entire bloody life.
God after used the courts to his advantage.
I could agree more mark and again your point is the one we've also made in the past that Let us assume as many people are predicting in all sides of political aisle these days that this this case is going to fall apart whether it's on pretrial matters or goes to trial We don't know for sure, but it certainly is is a flawed prosecution Your point is all important.
Thank you for making it once again on this this edition of our show That is that the investigation itself the prosecution itself even if doesn't
and result in a conviction.
That is, that is the retribution.
That is the punishment.
The investigation is the punishment, not only for James Comey, who, yes, probably has the resources to bring forth attorneys who will do an excellent job in defending him.
But what about all those other people whose names are not on the list that I just described here?
Those other people we have described, identified by this president, may be down the road who do not have the resources to rally all of this legal defense.
For them, once again, not only in the public domain, your name is splashed all over the media.
You have been indicted, you're under investigation.
The investigation that charges themselves are indeed the punishment.
That's the retribution.
And if a conviction comes, that's just an addition to it.
In the unlikely event that there is a conviction, that also pursues or advances further the president's inappropriate pursuit of this kind of activity.
But the investigation, what's going on right now, Mark, could not agree with you more on that and the other issues that you've identified.
Thank you so much for being a part of our broadcast this morning.
So let's talk about all of that, the things Mark's identifying.
Authoritarianism.
authoritarianism.
There is an awful lot, of course, written out there about that.
There is a fairly seminal writing, way back in 1964, by a fellow named Juan Linz, who talks about an authoritarian regime.
He says there are four different things.
limited political pluralism.
That is, you're stopping people from having diversity and thought in politics.
You're stopping the community, if you will, of discussion that should be a part of a pluralistic society by constraining what?
The legislature, parties, your own entities, your departments of justice, interest groups, stopping people from doing the things that they are obliged to do, and yes, using them
for your own purposes.
A second thing is legitimacy based upon appeals to emotion and proposing to the people who are listening to you, your constituencies, that the people you're going after are bad guys, for example, as the president has said.
Identifying problems, insurgency, emergencies, all kinds of things that mandate this kind of authoritarian behavior.
Suppression of
anti-executive and anti-regime activities, suppression of people like James Comey and Letitia James and George Soros and all these other folks, people who are perceived as your enemies, if you will, in the public domain in politics and suppressing them by, yes, investigating them, prosecuting them, and all these ill-defined executive powers taking upon yourself.
some vague and often shifting authorities that you do not have will get to that in just a moment or so, all those kinds of things and more referencing history.
and referencing what people who know these kinds of things have identified as an authoritarian government.
I have said repeatedly that on March 15th, we entered into a constitutional crisis.
That was the day upon which the government of the United States of America began to dissemble and began to lie to a judge named James Bosberg about those 238 people who were loaded onto planes and sent off to El Salvador.
They're still there with the exception of one of them.
who is brought back again under very, very troubling circumstances.
On that day and going forward, the government, your U.S.
attorneys, and your prosecutors in the federal courts, in the District of Columbia, in front of James Boseberg, have lied, have misrepresented, as have other lawyers in that.
same regime, if you will, including lawyers who appeared in front of Judge Zinnis in Maryland and others.
around the nation.
We know that that's going on as well, and we know that that has been the constitutional crisis of one entity of the government saying no to the other.
That's no longer checks and balances.
That is no longer simply pursuing an appeal.
That is discarding the very mechanisms by which our government is checked and balanced.
the separation of powers brought to its knees.
That's the constitutional crisis we have been in ever since March 15th.
That Saturday, when we began to lie to a federal district court judge repeated in many other circumstances since then, this past Thursday, we now slip into authoritarianism.
By virtue of the fact that we have now permitted the president of the United States of America to take over, the Department of Justice to direct that his political enemies be prosecuted.
on cases and under facts that, again, are certainly subject to an awful lot of skepticism about whether or not the government can prove this, whether this is at all a merit-based prosecution.
That is the subject of what will go forward here, but certainly the product of prosecutorial animus and misconduct at the direction, at the hands of a president who should have nothing to do with the Department of Justice.
You do not want
any of your decisions about who's prosecuted and isn't prosecuted in the District of Columbia, in the districts of Wisconsin, in California, in Texas, in Florida, the 93 districts, those have got to be independent of politics and partisan views.
And if a president is involved in the decision-making about who and what and where and for what purposes, a defendant or a series of defendants are indicted, your system is lost.
That is the authoritarianism about which I speak today.
And that is the reason why we mark, we mark September 25th like March 15th as another watershed day in American history, even as our country continues to wrestle with these great challenges of law and order and of rule of law and of justice that we should all expect from a government.
that is here to serve and support all of us.
That's the authoritarianism into which we have slipped just this past week.
This past week also saw the issuing by the Supreme Court of a number of additional decisions of great consequence.
Let me identify just a couple of those and then speak in particular about this major decision involving, yes, what I'm going to encourage this broadcast and next broadcast for you to understand and put in your lexicon this notion that Humphrey's executor
is now on the chopping block.
We'll explain that in just a moment or so.
We know that just this past week, a couple of things happened before the Supreme Court, including the decision by the administration.
Yes, now it's before the Supreme Court, the Trump administration asking the Supreme Court formally to allow the end of birthright citizenship.
Not resolved by the Supreme Court on June 30th, the Supreme Court now being asked by the president to determine that if you're born here, but you're born here of a mother, parents who are not legally here or here temporarily, you are not a citizen, overturning well over a hundred years of precedent in this nation.
under the 14th Amendment, the administration asking the Supreme Court Justice past week to review that case and late this past week, allowing Donald Trump to slash foreign aid, allowing the Trump administration to withhold four billion with a B in foreign aid.
that was appropriated by the Congress.
Again, even as the lower courts continue to wrestle with this issue, another case involving the shadow docket, three liberal justices dissenting, of course, including Elena Kagan.
She says, the stakes are high at issue is the allocation of power between the executive and Congress over how government funds are spent.
She's joined, of course, by Sonia Sotomayor and Kitaji Brown Jackson.
And we have another.
instance where while the lower courts are continuing to wrestle with this issue about whether or not the president's withholding four billion dollars in foreign aid appropriated by the Congress as a part of our constitutional process whether he can unilaterally cut that funding and what the potential impact of that may well be, the Supreme Court going ahead and saying sure.
go ahead and do just that, at least while the case continues to go forward.
The orders, again, technically interviewed, but have broad consequences, right?
They allow the administration to remove protections for hundreds of immigrants in other cases, to fire independent government regulators, to remove transgender groups from the military, people from the military, all of that.
About 22, 23, 24 of these cases being decided on the shadow docket in
including once again, just this past week, this major case involving the Federal Trade Commission.
Federal Trade Commission, again, significantly established, as you all well know, because we have talked about this, we've wrestled with this in the public domain.
It is a congressionally established independent agency.
The commissioners do not sit around the cabinet table with the president in the cabinet room.
They're independent created by the Congress to be independent.
Why?
Because they're commissioned to enforce consumer protection laws and antitrust laws and all sorts of things related to the trade in America.
All kinds of things that are important and should not be subject to partisan engagement.
All of those things independent of the president.
And indeed, it's Humphrey's executor that said that.
Humphrey's executor that said that in the annals of history.
How does this case come about?
How does this particular case?
We're going to call Slaughter based upon the fact that notwithstanding the precedent of the Supreme Court that says you can't fire FTC commissioners, Mr. President.
Nonetheless, he does this and he fires Rebecca Kelly.
My name is Jim Santel.
This is Amicus, a law review once again, visiting the conduct, the actions of our Supreme Court.
I appreciate so much the comment from Jim once again, noting that it is not Americans who are doing this, but it is six members of the Supreme Court.
who are letting the president engage in these kinds of behaviors, giving him the authority to go ahead, even while underlying litigation about fireings and allocations of monies, and congressional conferences of authorities are being run rough shot over.
Jim, I appreciate the comment very much coming in from Appleton.
What are we talking about?
This is the federal trade commission.
This is slaughter.
That is the name of the case.
She is the commissioner unilaterally fired by the president of the United States of America.
And the wake of a case called Humphrey's executive versus the United States way back in 1935, it's the same circumstance.
US Supreme court decides back then that the US constitution and indeed the very commission of the federal trade commission allows the Congress to enact a law like the FTC.
And what is it?
do, it limits, it restricts, it prohibits the president from firing executive officials of independent agencies.
And we're back here once again.
And that is Humphrey's executor.
Next broadcast, I'm going to tell you more about all of the history related to Humphrey's executor.
Keep that in mind.
It's going to loom large in this term of the Supreme Court.
Lots of people involved in that historically involving, again, William Humphrey.
A president named Calvin Coolidge, another president named Franklin Delano Roosevelt, and disagreements at that time about whether the president can do this.
The Supreme Court in the end saying no decisively.
The president cannot fire commissioners of the Federal Trade Commission, can't do it.
And the authority of the president to act in this area is not only limited, it's non-existent.
What happens this past week is that the Supreme Court overturns the lower court.
Judge Ali Khan overturns the U.S.
Court of Appeals for the District of Columbia that says that the commissioner cannot be fired without the required grounds of inefficiency, neglect of duty or malfeasance that's required by the law, that's required by an application of constitutional principles and the Supreme Court.
at the pen of the Chief Justice, John Roberts, once again bemoaned appropriately by Jim and others in America, says, you know what?
We're going to stay those lower court decisions.
We're going to suspend them, go ahead.
The application to do that by the president is also going to treat this as an application for a writ of certiorari.
That's the legal term for, we'll take this up.
We're going to take up whether or not this concept in Humphrey's executor should be revisited.
He identifies a couple of questions, whether the statutory removal protections for the federal trade commission commissioners violates the separation of powers and whether a federal court.
can prevent this person's removal from public office, specifically notes whether or not we should now overturn Humphrey's executor issued by the court in 1935, 90 years ago.
It's been the law of the nation for last nine decades, plainly signaling that the Supreme Court in this coming term on this case is going to overturn this precedent that affirmed 90 years ago, the separation of powers in America.
Along the way, Justice Kagan joined by Justices Jackson and Sotomayor says on top of granting search or rare eye before judgment is rendered in this case, the lower court.
The court today issues a stay enabling the president to immediately discharge without any cause a member of the FTC.
This granted our emergency docket just the latest in a series.
Earlier this year, she notes the same majority by the same mechanism, permitted the president to fire without cause members of the NLRB, the Merit Systems Protection Board, the Consumer Product Safety Commission, and all of them, she says, are classic independent agencies, multi-member, bipartisan commissions whose members have served dutifully.
Can it be removed?
Except for good reason.
Yet the majority, she says, stay in order, stay order by stay order has handled
Full control of those agencies to the president he may now remove or so says the majority for any reason and no reason at all
the people he does not like.
And he may thereby extinguish the agency's bipartisanship and independence.
She says, I dissented from the majority's prior stay orders, and I do so again today.
She says, under existing law, but Congress said goes, as this court unanimously said in 1935 in, yes, remember the name, Humphrey's executive rejecting a claim, a presidential prerogative identical to the one made in this case.
She has indeed the suit emerged from a
discharge at the very same agency.
Congress, we held, may restrict the president's power to remove members of the FDC, as well as other agencies performing quasi-legislative or quasi-judicial functions.
So the president...
cannot, as he conceitably did here, fire an FTC commissioner without any reason.
To reach a different result, Sonya Sotomayor, I'm sorry, Elena Kagan writes, a different result requires reversing the rule stated in Humphrey's executor.
It entails...
overriding rather than accepting Congress's judgment about agency design.
She goes on to say the majority may be raring to take that action as its grant of certiorari before judgment suggests.
I'm gonna take this on.
She says, but until the deed is done,
Humphrey's controls and prevents the majority from giving the president the unlimited removal power Congress denied him.
Because the majority's stay does just that, she says, I respectfully dissent, our emergency docket should never be used as it has been this year to permit what our president bars.
Still more, she says, it should not be used as it has also been to transfer government authority from Congress to the president.
and thus to reshape the nation's separation of powers.
Watershed event at the Supreme Court this past week that included at least two watershed events in American history.
When we come back next week again, I'll tell you more about Humphrey's executor.
We'll talk more about the Supreme Court going into business once again.
All of that, all of that is amicus on the broadcast stations of Law Review.
Amicus, Law Review as we are broadcast stations continue here, here and inviting you back for more of that conversation.
Have a
good week everybody.
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