The following is a lightly edited transcript of the November 25 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
This week brings two major developments when it comes to President Trump’s corrupt weaponization of the justice system. First, a judge threw out the Justice Department’s prosecutions of two of Trump’s enemies, James Comey and Letitia James, ruling that Trump’s stooge prosecutor had been appointed unlawfully. Second, the Defense Department just announced that it’s investigating Senator Mark Kelly as clear retaliation for his participation in an explosive video which Democrats warned against following illegal orders. Trump erupted in fury at that video over the weekend. The through line here is that in both these cases the system is being corruptly used as a weapon of revenge and it appears that these schemes are blowing up in Trump’s face. So how heartened by this should we be? We’re talking all this over with one of our favorite legal analysts, Talking Points Memo Editor-at-Large David Kurtz. Always good to have you on, man.
David Kurtz: Hey, Greg, good to be with you.
Sargent: So the big news is that a federal judge just threw out the prosecutions of former FBI Director James Comey and New York Attorney General Letitia James. The ruling found that Trump’s chosen prosecutor, Lindsey Halligan, was appointed illegally to the post of interim U.S. attorney for the Eastern District. David, can you walk us through this ruling?
Kurtz: Yeah, so there were a bunch of problems with both of these prosecutions, all stemming from the fact that they’re politically motivated and driven by the White House and that we no longer have an independent justice department. But the threshold issue before they got to all the other problems with the prosecution was whether Lindsey Halligan had been properly appointed in the first place. And the judge looked at the statutory record, looked at the appointments clause in the constitution, looked at past history and practice and found it was clear that the Trump administration had exceeded its authority.
Sargent: So I think it’s worth underscoring that this result flows directly from Trump’s corrupt effort to use the justice system against his enemies. The whole reason Trump had to rely on Lindsey Halligan to prosecute Comey and Letitia James is that career prosecutors were refusing to do so because the facts wouldn’t support it. So Trump had to rush in with this stooge prosecutor and now that’s what’s blowing up in his face. Can you explain that part of it to us, David?
Kurtz: Yeah, so there’s two things going on here. One, it wasn’t just career prosecutors who thought there weren’t cases here, but it was his own picks, the interim U.S. attorney who was already in position and who was also Trump’s nominee for the permanent position. He refused to go along with it. Trump had him removed, put Lindsey Halligan in his place. So that’s part one.
Part two is they were under the gun of the statute of limitations expiring on Comey’s alleged crimes. And so they only had a few days in which to rush her in, get her in front of the grand jury and get an indictment secured. And as we know from hearings last week in the Comey case, she kind of botched everything in front of the grand jury too, which it all goes to why you don’t want people with no prosecution experience, loyalists of the President, people who’ve personally been his personal attorney, worked in his White House, becoming the chief federal prosecutor in one of these districts.
So it all goes back to, as you say, the corrupt intent from the get-go to use the Justice Department as a weapon and his clearly stated willingness to do whatever it takes to see these investigations become indictments so that he can use these for political purposes.
Sargent: Right. We need to remind everybody that he actually openly and explicitly commanded his Attorney General to bring these prosecutions. I just want to underscore another element of what you said there because it seems important. This woman has no experience with these types of prosecutions. The whole thing has been a complete fiasco. But again, that’s because the people with experience wouldn’t do it. That’s the whole point, right?
Kurtz: That’s right. She was an insurance lawyer for most of her legal career. She defended Trump a little bit in the criminal cases, but before this role had no experience. And so the judge today ruled that the indictments were void, that none of her acts as U.S. attorney were valid. And I should add that the Justice Department, Attorney General Pam Bondi in particular, took these great efforts to try to ratify what Halligan had done once this became an issue. So after the fact, I’m going to try to retroactively bless everything she did in a way that makes it copacetic. And the judge today rejected that as insufficient, incomplete, and beyond Bondi’s power to do.
Sargent: Well, we heard from White House Press Secretary Karoline Leavitt, who reacted by saying that James Comey shouldn’t be doing a victory lap because they’re going to appeal it. Listen to this.
Karoline Leavitt (voiceover): We believe the attorney in this case, Lindsey Halligan, is not only extremely qualified for this position, but she was in fact legally appointed. And I know the Department of Justice will be appealing this in very short order. So maybe James Comey should pump the brakes on his victory lap.
Sargent: So David, what happens now? They’re going to appeal it. How do you think that’s going to unfold?
Kurtz: What comes next is interesting. So this is the third decision like this, slightly different facts in each case. But judges in New Jersey found that the U.S. attorney there was not properly appointed and the same thing happened in Nevada. I think each of these is going to likely go up on appeal and we’ll get a firmer sense from appeals courts whether the statutory scheme will withstand scrutiny and can be abused in the way that it’s been abused. Of all the things that we’ve seen, you can’t ever guess how these court decisions are going to come out. This one feels like this has been the practice for a long time. Everybody knows how this is supposed to work. Their proposal, as Judge Currie said today, would basically allow anyone to walk in and be a U.S. attorney and they get blessed after the fact by Bondi or let the President just continually, perpetually appoint interims and never have to get Senate approval or confirmation. So I don’t think that’s going to stand much scrutiny, but I hate to predict, and it depends on the panel, depends on the appeals court, et cetera.
Sargent: Absolutely, though it just really looks like it’s running into the ground for Trump, at least for the time being. On another front, the Defense Department just announced that it’s investigating Senator Mark Kelly of Arizona over a video that he posted last week with five other Democrats. The video was very powerful. It informed members of the military and the intelligence services that they are not obliged to follow illegal orders. So Kelly is now being investigated with an eye toward a potential court-martial. But David, we had the Defense Secretary, Pete Hegseth, unleash this unhinged rant on Twitter claiming that Democrats had encouraged insubordination, which is nonsense. All it did is make it clear that this is only about retaliation. What do you make of all this, David?
Kurtz: We’re so far off the rails on this, it’s hard to even know where to start. But let me start here. Pete Hegseth came into office, came to fame really in right-wing circles as someone who is deeply skeptical of war crimes, deeply skeptical of the legal restraints that had been placed on the military during the global war on terror. He saw them as being handcuffed in Afghanistan and in Iraq. So he comes to this with a strong bias against any sort of legal limitations on military conduct. So that’s the first thing.
Second thing is, as soon as he becomes Defense Secretary, he cans two of the three top service judge advocate generals, the top lawyers in each service. One was already vacant. We can assume he would have fired that one too. Reporting has showed again and again he has tried to sideline military lawyers throughout the chain of command, again, as if the lawyers have been holding back the military from conduct that it would otherwise be able to engage in.
Which I think ignores a third thing, if I can just finish up real quick, which is that the military has been trained for almost 50 years now, since the end of Vietnam War, in the limits of lawful orders and the obligation they have not to follow unlawful orders. This is part of their training, this is part of their culture. This is part of the ethos that has been baked into the military, or tried to be baked in the military, since things like My Lai during the Vietnam War.
So to see us come full circle now to where you have the Defense Secretary actively attacking someone like Mark Kelly, threatening his status in the military, threatening his liberty over something as basic as just reminding folks that they don’t have an obligation to follow illegal orders is alarming. It really is alarming and kind of turns everything on its head, which I’m not sure that nonmilitary listeners will necessarily appreciate or understand.
Sargent: Well, Donald Trump came in over the weekend and exploded in fury at these Democrats over this video. He said, “the traitors that told the military to disobey my orders should be in jail right now. It was sedition at the highest level.” Now that’s nonsense. What the Democrats actually said in the video is that officials are not obliged to obey illegal orders. They were just stating what, as you said before, has become convention for the military and for members of the military, something that they’re all supposed to know in their bones. And by the way, there’s lots and lots of evidence. We detailed it at TNR.com. You can go check that out, that Trump actually has been giving illegal orders, such as with the boat bombing in the Caribbean Sea. There are actually people inside the military have objected to the legality of that, at least one lawyer has. Yet you’ve got Trump raging all weekend about this, amplifying all these attacks on Dems. So here, tell him why you’re so alarmed, David. The investigation of Kelly is kind of another level of corrupt weaponizing of the law against a critic, right?
Kurtz: It is. I think for our topic today, that’s exactly how it fits in—using either the civil justice system through the Justice Department or the military justice system through the Pentagon to retaliate against your enemies. It is the same brand of corruption, if you will. I think what makes this especially alarming is exactly what you said. The context of all of this—the reason they did the video, the reason the Democrats did the video—was because of what’s happening in the Caribbean and the Eastern Pacific with these lawless attacks that even conservative legal experts have not been able to come up with valid or legitimate defenses of as being lawful.
And so you’ve had the combatant commander in that region retire very early from a term that would have lasted several more years. You’ve had, as you suggest, reports that lawyers within the chain of command—at least one—has raised objections. The other thing I would note is each time the Pentagon has denied that lawyers have raised exceptions, they’ve included some sort of wiggle language about lawyers who know about the operation or lawyers involved in the operation. So there’s a caveat that they are, I think, keeping the number of eyes who are evaluating this and assessing this very limited so that they can plausibly say that it’s been blessed.
It is the world’s sole remaining superpower feeling like it can conduct itself without regard to law, without regard to anything Congress has done or failed to do. That is the most alarming because it is the pinnacle of executive power and the place where there’s often the least limits on it anyway—and they are bull-rushing their way through the limits that do exist.
Sargent: Well, I just want to add to what you said there. The commander who was overseeing these bombings stepped down, as you mentioned. I want to add that there was no public explanation, either from him or from the Pentagon, explaining the resignation. And on top of that, we had Representative Adam Smith, who’s the ranking Democrat on the House Armed Services Committee, on this show here. And he told us that he was trying to get this Admiral Alvin Holsey, is his name. He was trying to get Holsey to sit down with the Committee to say whether he feared he was being given illegal orders. The Pentagon, he says, wouldn’t allow that, and Republicans on the House Armed Services Committee aren’t pushing for it. So it’s not as if we couldn’t get to the bottom of this if we wanted to. If we had a functional Congress, you would hear from this Admiral. You’d be able to ask him under oath, did you fear you were being given illegal orders, right?
Kurtz: That’s right. And it is another area in which the Republican-controlled Congress has abdicated its constitutional obligations. And this comes, we should say out loud, as the largest U.S. troop deployment in the region since the Cuban missile crisis is underway. We have a carrier task force group there. We have considerable resources, the likes of which we haven’t seen in, what is that, 60 or 70 years now, Greg, and all of which is not really about the purported drug trafficking attacks that we’ve been engaged in, but are about trying to destabilize the regime of Venezuela’s president. And the Republican-controlled Congress seems content to let all of this happen without really having a say in the matter.
Sargent: David, let me just throw out there on that, that when this is being debated, whether we’re going to war in Venezuela, it’s almost an afterthought that he doesn’t have the authority to do that. We don’t even discuss that anymore. The bombings themselves are clearly illegal. Congress hasn’t authorized those. But now he’s talking about an invasion of Venezuela, essentially, and nobody ever talks about the fact that that requires congressional authorization. So the whole Overton window has really swung in a pretty alarming way.
Kurtz: Yeah, and it is in part because it is so consistent with how the Republican Congress has acted in other realms and so consistent with Trump’s own sort of predilection toward extreme exercise of executive power without regard to any of the guardrails. We’re in a bad spot on this. I mean, the ruling today from Judge Currie is a hopeful sign that there are some guardrails will hold. But we’ve seen so many not, and as I said, in the military realm and the national security realm, it’s particularly alarming.
Sargent: Well, let’s step back a bit. It seems to me the big story here is that this sort of explicit and openly advertised corruption of the system is itself an essential feature of Trump slash MAGA politics. Trump’s appeal is that he’s making no bones about corrupting the system for these purposes, but it looks like that part is backfiring for him because it’s the ham-handed and deliberate nature of this that’s working against them. You mentioned the post-Vietnam period, I think in a very large sense. The ’60s and ’70s, the Watergate scandal, the Vietnam War travesties, all that stuff really led people to rethink Congress and rethink our system in really fundamental ways, leading to a bunch of norms and laws and rules that are supposed to be in place now, but on all these fronts, all that’s getting wiped away. What do you think of that, David?
Kurtz: Yeah, I think that’s all right and all correct, but I think the thing I struggle with is that for Trump, so much of the appeal is in violating the norm, right? Kind of regardless of what it is. At some level, he doesn’t care whether Comey is indicted on this or that. He may not even particularly care whether Comey is convicted on this or that. What he wants to do is to punish him, right? And these are the tools that he has in place to punish him. I don’t think they really care about the particular punishment they met out to Democrats. I think Mark Kelly may be particularly right because he is a former military person, but there’s just ways in which the doing of it is the point. And whether it yields a particular outcome doesn’t really matter as long as they get to exact the punishment. And so when that’s your only standard, and nothing else really matters, then all sorts of values and norms and principles and whatnot are sacrificed at the altar of your retribution. And that’s what we’ve been looking at for.
Sargent: Where do you think this all ends up? I think it’s pretty likely that these prosecutions end up failing. I also think it’s somewhat likely that we end up at war with no congressional authorization. Karoline Leavitt just said the bombings are going to continue. Those are going to continue. Those are deeply illegal. Are you optimistic or pessimistic about the big picture rule of law surviving into coming years?
Kurtz: Look, I’m not great with predictions, but I am not optimistic that we’ve hit bottom yet. I don’t see a light at the end of this tunnel. I think there are many aspects of our civic society, our democratic traditions, and whatnot that are bound to persist at some level, but these threats and these attacks are real, they’re persistent, they’re doing real damage every day. And I think the path to getting back to where we were, it’s going to be long and difficult, and it’s going to take a real change sort of in our political culture, that there is a broad consensus that reemerges that these things are important. And right now, that’s under considerable distress.
Sargent: Well, that’s what happened after Vietnam and after Watergate—it was a big shift in thinking, and it led to a bunch of reforms. Do you think that could happen again?
Kurtz: I think it’s possible. I think that is our best hope, in fact, is that we end up with a backlash to this that, you know, gets you a sweeping victory in Congress at some point in an election not too far down the road, and that you have some of the sort of post-Watergate fervor, something along those lines, come into place. But these, the damages here, I think are far graver, have gone far faster than Watergate did, and much deeper into sort of the structure of our government. And so I think it’s going to take more than just sort of that Watergate class or the equivalent to bring us back to where we were before.
Sargent: Folks, if you enjoyed this conversation, check out David Kurtz’s newsletter over at Talking Points Memo. He covers this stuff in granular detail, but also with an eye on the big picture. And the big picture is pretty damn ugly. David, always great to talk to you, even if it’s pretty grim right now.
Kurtz: Yeah, thanks for having me, Greg. I appreciate it.