Transcription
All right, friends. Welcome back. I have my friend Kevin Flynn with me here again. 35-year federal prosecutor. He outdid me by five years. I was just a 30-year federal prosecutor. And together we try to bring all our experience to bear on legal issues of the day in what is now a recurring segment called the prosecutor's verdict.
With that, Kevin, welcome back. I appreciate you jumping on with us.
>> Thanks, Glenn. Great to be here.
All right, so let's talk about what happened in the Comey and Leticia James hearing, combined hearings in federal court in Alexandria, Virginia. I was sitting in the courtroom watching the proceedings and there was what I consider to be a bit of a bombshell dropped right in the middle of it and it was when Judge Curry said there seemed to be some grand jury information inferentially, some audio recordings that she believed were missing.
So, why don't you set up because you actually uh sent me the Huff Post piece that kind of set up how it is that Judge Curry decided to share that information uh in that hearing.
>> Sure. Um well, as your your audience knows, there are actually multiple motions that um uh James Comey and Leticia James have filed to dismiss this case. Uh and uh two of them, one of them is for vindictive prosecution. uh probably a companion within the same motion is for selective prosecution uh and and also um a a motion that challenges the appointment of Lindsey Halligan as US attorney uh as being um unauthorized, illegal, and therefore challenges the legitimacy of of the indictment. Uh and in the mix in all of this is potentially uh a claim of abuse of the grand jury.
So um the context in which the judge made the observation was uh in connection with a representation that had been made by the government that uh attorney general Bondi had reviewed all of the grand jury materials u in uh in in deciding that uh a fix it for the appointment of Haligan was to appoint her special counsel name her special counsel just a title change basically and then to retroactively ratify whatever she had done. So, the government made this representation and the judge uh you you were in the courtroom, Glenn, but I can only imagine it seems as if it was the statement was was kind of dry and droll, but the uh uh the observation was well, Attorney General Bondi could not possibly have reviewed all of the grand jury materials because uh there is uh a a a gap in the recording of the grand jury. Uh, and it's been reported that the the grand jury in the Comey case returned their indictment after hours. Um, court hours usually end in in most courouses 4:45 or 5:00 because of uh cost and having to pay overtime to staff, etc. This indictment was returned by the grand jury after court hours. And so the judge has said that from 4:28 p.m. on the day that the indictment was returned all the way through the time of the indictment returned, there is a gap in the uh in the audio recording.
And just so your your view viewers know the significance of this, uh I used to say that I had the most the most transparent but also the most secret job uh around because uh everything we did in court in trial was transparent. But our grand jury investigations were by nature and by necessity confidential uh because of various issues that we don't need to get into right now involving witness security and things of that nature. But because those proceedings are are confidential, it is extraordinarily important for prosecutors to follow norms in terms of how they handle the grand jury. Everything that the prosecutor says to a grand jury is on the record. Everything that a witness testifies to is not only on the record, but a written transcript is prepared in every case of those witnesses. And the witnesses who testify at trial end up having to have their transcripts turned over by the government to the defense. But there is not from the time that a case is called, you call a case in the grand jury, the door closes. Uh the next thing, are we on? Yes, we're on. Court reporter is typing away. And also there's a there's there's an audio recording that is that is being generated at the same time. And there is not a single thing that you say to a grand jury that pertains to a case uh that that is not recorded.
And in this case of all cases, keep in mind this is a first time a never-before prosecutor in the grand jury for the first time. uh and the only inference that I can draw and I and I don't like I don't want to be cynical here but they have given me these people have given me cause for cynicism uh is either that uh the grand jury reporter was not in the room when representations were being made uh about this case uh to the grand jury and these are really really significant representations because they were u meant by way of persuasion and advocacy for this indictment to be returned uh before the um the the US attorney uh then US attorney now I guess special counsel somehow ordered the grand jury reporter out of the room. This is an extraordinary breach of grand jury protocol. It's an extraordinarily if everything that I've said is true or even if onetenth of what I've said is true, it's an extraordinary ethical breach and it is going to have to be dealt with um by the court and potentially by other forums.
And another possibility here that I I think we should entertain is that everything was recorded, everything was transcribed, everything was provided to the the prosecutors, to Lindseay Halligan, who then in turn gave everything to Pam Bondi. And maybe Pam Bondi really did have everything. But the question is, does the court, does the judge have everything? And here is why. And and let me just say I just gave an interview to Newsweek in an article that literally was published about 30 minutes ago. I will post it here on Substack as soon as we're done, but you can go to Newsweek's site and find it. And I said, listen, what the judge said led me to the reasonable inference that there is missing grand jury material. Here's why I say it. Just as Kevin said, every word we utter, we don't even breathe heavy unless we know that the the grand jury reporter has said we're on the record means we're ready to go and every word will be captured until we are done being on the record. And that's when the prosecutor walks out. So what she said was, "I don't believe I have all of the grand jury recordings here." Now think about this. If deliberations were about to begin, here is what the grand jury audio recording would look like. Ladies and gentlemen, you've seen all the witnesses. You have all the evidence. I've tried to answer your questions as best I could. Does anybody have any questions before I leave the room and turn it over to you all to deliberate? No, nothing. All right. Thanks, folks. Off the record.
>> Tell me that somehow Judge Curry misunderstood what she was seeing when she reached the conclusion there are some missing audio recordings.
Um, so let me ask you this, Kevin. In the event there are missing grand jury minutes, um, what do you think the implications are of that? What do you see perhaps the judge doing with that knowledge that she may not have been given everything she asked for?
>> It there are certain facts that we we don't know and we are drawing uh unavoidably inferences from them. But I would think that at this point uh this judge uh is going to start demanding um the highest ranking officers in the Department of Justice to come before her and explain this. Uh this this this appointment this this US attorney is not operating in some in in a backwater jurisdiction where where they're they're basically operating on their own. Uh this was an this this was an indictment that was directed by the president. Uh it was uh a procedure that was dictated by the attorney general and the president's if not the president's order is all over this. the pres's fingerprints are all over this and so uh I don't think and you were able to to see the uh the demeanor of the judge but I don't see this judge as being one who is going to back away from this and is just going to take it on faith that somehow or another um there is a there is an innocent but heretofor unprovided uh explanation for for for this gap particularly given the circumstances here.
Now, keep in mind, and we we we addressed this in a previous show, um through 35 years uh of my experience and and through 25 or 30 of yours, we never had a judge order us to turn over these tapes to begin with. Uh it was it was it would only be on a um a showing of some type that there was abuse in the grand jury process that the uh that that a judge would order the tapes of what the prosecutors actually said to the grand jury to be turned over. So, we already have a judge who has who has sort of like crossed that who who's crossed the Rubicon there, right? Uh has already made a determination uh that that this material needs to be turned over in the first place, which is extraordinary. And then to have the material be include missing um recordings uh is is even more extraordinary. So, I I yeah, I predicted I I think in a private conversation with you that um this is this is going so far south that um the Department of Justice is going to end up dismissing the case against Comey as opposed to having Lindseay Halligan/Pam Bondi completely get destroyed by findings that this judge is going to make andor by testimony that they themselves are going to be compelled to provide.
But then the issue becomes if the department of justice um and we haven't talked about this. I've coitated on it myself. If the department of justice um enters a dismissal, they are likely because they don't want to um displease their the dear leader. They're likely to ask for that to be without prejudice, meaning that the government can rebrand the case. And if they make that motion, I can very easily see uh the defense uh for both um Mr. Come and and Miss James uh saying that these dismissals or this dismissal should be with prejudice, meaning that the government cannot bring the the case again. And then that would get into the judge having the opportunity to make inquiries as to uh alleged misconduct by the prosecutors in the grand jury.
>> Yeah. And both defense teams for James Comey and Leticia James made clear they want the dismissal to be with pre with prejudice so it it could never be rebought.
Um, so if we had to fashion some kind of a verdict, I'm not sure what our verdict would be here, but you want to take a stab at how you would rule what you would call this?
>> My verdict right now is extremely suspicious.
>> That's that's >> extremely. And you're being generous by saying extremely suspicious. I'm going to I don't know if this is synonymous, but I'm going to go. My verdict is nefarious as hell. I'm going to go there.
>> Cuz you know I'm a Jersey guy so I had to slip a little something in.
Um, all right Kevin, thank you for coming on for today's prosecutor's verdict. I'm sure we'll be we'll be doing this again next week.
>> Sounds great. Thanks Glenn.
>> All right, see you everybody. I'll see you later tonight.
>> Bye now.