BREAKING: Trump prosecutor endures COURTROOM DISASTER

You're watching The Legal Breakdown. Glenn, we've got a disaster in court with Donald Trump's newly appointed U.S. attorney in the Eastern District of Virginia, the attorney that was put in place expressly so that this administration could prosecute James Comey and what I presume will be Letitia James. Now, I'm going to put a tweet up up here on the screen, courtesy of the senior editor from Lawfare, and this is the magistrate judge in this case trying to untangle Lindsay Halligan's first venture into indicting someone. So I thought what

would be interesting here is if you and I read both parts because we've got Lindsay Halligan and we've also got the judge in this case talking to each other. So Glenn, you play the role of the court, the judge, and I'll play the role of Lindsay Halligan and we'll read this through to give everybody watching right now an idea of what just went down in court.

Well here you go, Brian. I am the presiding judge and the judge says, so this has never happened before. I've been handed two documents that are in the Mr. Comey case that are inconsistent with one another. The one that says it's a failure to concur in an indictment. It doesn't say with respect to one count.

It looks like they failed to concur across all three counts. So I'm a little confused as to why I was handed two things with the same case number that are inconsistent.

So I only reviewed the one with the two counts that our office redrafted when we found out about the two counts that were true, Bill, and I signed that one. I did not see the other one. I don't know where that came from.

You didn't see it? I did not see that one. So your office didn't prepare the indictment that they... No no no no no I I know I I prepared three counts I only signed the one the two count I don't I don't know which one the three counts you have in your hands. Okay it has your signature on it. Okay. Uh, well, so Glenn, that's, that's the exchange there. You obviously have much more experience in court than the vast majority of

folks who are watching this video right now. Can you give an idea of just how unorthodox this

exchange was in a courtroom? Brian, this represents unparalleled incompetence and imbecility. Those are the only words I can come up with. It is a very important moment in a criminal case when a judge for the first time is in a position to look at and affirm the propriety of a felony indictment, particularly one that was brought for the first time in our nation's history against an FBI director. Talk about an extraordinarily important weighty and even I would say solemn moment. And Lindsey Halligan doesn't know what the hell she's doing, what she's reviewed,

what she's authorized, what she signed, what it means. This reads like something that I don't even think the satirical publication The Onion could put together or envision. And here is immediately what I think of, because I've been in this position. I've presented indictments, we've had arraignments in hundreds and hundreds of cases that I've handled personally, and here is immediately where my mind went.

The grand jury is a secret proceeding by law, and what that means, Brian, is it's almost impossible to pierce the veil of grand jury secrecy." That is a tried and true phrase that we hear any time a defense attorney will attack the quality or the propriety or the lawfulness of a criminal indictment. The prosecutors will say, your honor, you know, there is almost no precedent allowing the defense to pierce the veil of secrecy and discover what went on inside the grand jury.

It's just not done. There are lots of important policy reasons not to let defendants pierce the veil of secrecy. But here's the thing. It can be done and it has been done in the past in relatively few circumstances. When there's an affirmative showing that there has been potential corruption or something dramatically inappropriate, unlawful, or unethical that has gone on before the grand jury, the

judge may very well allow the defendant to pierce the veil of secrecy and put on full display for all to see exactly what Lindsey Halligan did inside that grand jury that prompted you know at least 12 grand jurors which is how many it takes to vote in favor of an indictment voted in favor of this indictment that Lindsey Halligan doesn't even understand what's in the two documents. You don't present two indictments, you present one. The two documents that she presented to the magistrate judge and she then fumbled

and stumbled around to even explain them to the judge's satisfaction. This may end up being a very good thing for the cause of justice and for James Comey, but a very bad thing for Lindsay Halligan, for the Department of justice and for James Comey, but a very bad thing for Lindsey Halligan for the Department of Justice writ large, because if they expose the public view what Lindsey Halligan did, and it is as bad as this brief transcript excerpt suggests it might be, you know, she's going to find herself referred to bar counsel for an ethics investigation.

And just a quick note before we continue to move on. For those who are watching right now, if you'd like to stay on top of this legal news, please make sure to subscribe. The links to both of our channels are in the post description of this video. Great way to support our work. Great way to support independent media.

What impact does this have on the case right now? Like to what extent does does does an incompetent prosecutor alter the case? Or can you just be an incompetent prosecutor? Can you not know what you're doing and still

get full deference from this judge? Yeah, that's a great question. So there is a what we call a presumption of regularity that prosecutors are doing the right thing in the right way for the right reasons. I don't think Lindsey Halligan or Pam Bondi's Department of Justice as controlled by Donald Trump, who let's face it has anointed himself lead prosecutor in all criminal cases against his enemies, I don't think any of them are entitled to the presumption of regularity. I mean they are proving that day in and day out. Now when you ask

about an incompetent prosecutor, you know, there is no rule or precedent that says, well, a judge has to assess the competence of the prosecutor. Prosecutors come in all stripes, in all flavors, good, bad, competent, incompetent, expert, novice, ethical, and unethical. But, you know, it's not really the competence of the prosecutor that will impact the trajectory of the case. It is if the

judge sees that something has gone on that is a violation of the rule of law, a violation of the rules of procedure that govern the grand jury because remember our viewers should remember the grand jury is an arm of the court not an arm of the executive branch the prosecution it is supervised quite literally by the chief judge of the federal district court in which the grand jury sits. So if there's something that is done that either violates the rule of law the Constitution or the rules of procedure

or there is something that potentially violates a constitutional or statutory right of the defendant, which may have gone on here in the way the grand jury indictment was obtained by Lindsey Halligan, then that could result in dismissal. But I don't want people to get too excited about the prospect of this indictment being dismissed based on some of what we are now learning, because if a judge dismisses an indictment for some impropriety in the grand jury, that

will almost always give the prosecutors the ability to go back into the grand jury, clean it up, and issue a subsequent indictment that might withstand an attack from the defense. However, all bets are off here because of the evidence of vindictiveness as demonstrated by Donald Trump's statements and posts over time,

saying that he wants his enemy, James Comey, prosecuted, evidence be damned. That may end up resulting at some point in a dismissal with prejudice, meaning there's no way this case could ever be brought back

in court.

So I understand that, that even if Lindsey Halligan is flailing around, that she might be, uh, that she might be given this presumption of regularity in the court, but does, I guess as a broader question here, does her inability to not fumble around like a novice prosecutor, can that still kind of present itself in the way she argues this court? And so in the same way that she has no idea what she's doing here as this whole process is beginning,

don't you expect to see her inexperience kind of present itself when she actually argues the thing? And if she's arguing in a way that's inexperienced, that betrays her inexperience, won't that just lend itself to a lower likelihood of her actually getting this prosecution

against James Comey where it needs to be?

Oh, absolutely, Brian. If she is the prosecutor in this case, put a pin in that for a second, I would expect given what we just saw, the kind of opening salvo that this transcript represents her incompetence and I would say imbecility,

and she's entirely ill-prepared to even answer basic questions from the magistrate. Judge, that will clearly manifest itself in these proceedings as her not being able to litigate her way out of a paper bag. I mean, listen, she cannot come up to snuff

on the experience required to competently try a really significant federal court prosecution in a matter of days, weeks, or even months. So she will go down in flames if she is the prosecutor in the case. I don't suspect she will be, and here's why.

There are already rumblings that she's been trying to find prosecutors in the Eastern District of Virginia United States Attorney's Office to handle the case, and it looks like, at least inferentially, there are no takers. Not surprisingly, because I think anybody

who went into court as a Department of Justice prosecutor or as an assistant United States attorney, that's what we call line prosecutors, will be putting their license to practice law on the line. You can't go in and try to prop up a vindictive prosecution that is not supported by the evidence, which is what all of the public reporting tends to indicate, especially when you look at the testimony of James Comey twice over before congressional

committees, they're not going to have the goods to convict even if an ex even in the hands of an expert prosecutor. So here is what might happen and bear with me because I suspect this is what will end up happening. They're going to look for somebody over at the main Department of Justice, not even at the US Attorney's Office for the Eastern District of Virginia, and they're gonna try to find some political appointee of Donald Trump, some flunky, some lapdog, some sycophant, who might have some court

experience and take that person from the main Department of Justice across the river in DC, put them over in that courthouse in Alexandria, Virginia, and try to get that person to prosecute this vindictive, evidence-free, baseless prosecution. So I don't know that you'll actually see see Lindsey Halligan other than as a potted plant second chair sitting a council table, but not actively engaging in the litigation itself.

But doesn't that put the political appointee in the same position that any prosecutor would have been put in? Meaning, if you're going to engage in a vindictive prosecution, then your law license can be on the line, whether you're a higher ranking political appointee in Maine justice or a regular rank and file prosecutor in the Eastern District of Virginia. Don't you still don't you still butt up against the same issue

for these prosecutors?

Absolutely, but the point I'm trying to make is that the rank and file prosecutors who know what it takes to go into federal court in Alexandria, Virginia, the rocket docket, we've got a lot of no-nonsense judges there, including the one who has drawn this assignment and who will preside over the Comey case. They know

what they're getting into, which is why, inferentially, we're beginning to hear that they're refusing to do it. So he's going to have to get a political appointee who will be on the hook, ethically, the way anybody else would. But I have a feeling that may be the only person they may be able to find some lapdog political appointee to go in and put his or her bar license on

the line to please dear leader. Last question on this, can prosecutors whether it's a rank-and-file prosecutor in Eastern Virginia or in Maine Justice can they disobey an order from either, you know, Lindsey Halligan or Donald Trump to go in and argue this case? Like to what extent do they have discretion here?

That's a great question. And I want to be up front with the viewers. There's no hard and fast answer to that question like there is in the military. And let me use that by way of analogy I was an active-duty Army Jack for six and a half years we are required by our oath of loyalty to the Constitution and our

military obligations we are required to obey lawful orders but we're also required to disobey patently unlawful orders so we know the do's and don'ts of military service, what we're allowed to do. In the civilian sector, in the federal government, it's not quite so clear. You know, if a supervisor comes and tries to give you an assignment and you try to decline, you refuse to accept that assignment, it sort of depends on the reason. Now, if you stand up and say, listen, my loyalty,

not only to the Constitution, but to the code of ethics that I am bound to comply with, mandate that I can't accept this assignment, the next question becomes, well, could the Trump administration, could Lindsey Halligan retaliate by, you know, just unlawfully

terminating somebody's employment? Well, the answer is, of course they could because they've done it several times over to, for example, January 6th prosecutors. So, you know, the question of what are the implications of declining to accept an assignment that a supervisor tries to give you. You know, you may still have all sorts of legal and procedural protections as a civil servant going to the MSPB, the Merit Systems Protection Board, for example. But you know, all of that is sort of tossed out the window in the age of Trump because

they don't really care if they unlawfully terminate people. They basically do it and they challenge that person to, yeah, you go ahead and try to, you know, vindicate your rights that were just violated and we will make that equally difficult. But if you win a challenge at the end of the day and you have to be reinstalled with back pay, what does the Trump administration care?

Because who foots the bill for that? We do, the American taxpayers.

Right. Because who foots the bill for that? We do, the American taxpayers. Right, but at a bare minimum, these people will at least retain their law license and their ability to provide for themselves and their family, which, you know, you can't say the same thing for the Rudy Giuliani's and other Trump's sick events of the world

who have kind of listened to him and engaged in this fool's, in these fool's errands and have seen the consequences of doing exactly that.

Let me build on that because that's a great point. Part of what you asked previously was, well, don't these political appointees, if they come over from Maine Justice and try to prosecute, vindictively prosecute Comey, don't they put their law licenses on the line?

I said they do. And not only that, they will probably join the ignoble club of Rudy Giuliani, Kenneth Chesbrough, Jeffrey Clark, John Eastman, attorneys who have been disbarred or are still pending disbarment because they were willing to do the dirty, unethical, nefarious bidding of Donald Trump.

Right. Well, look, uh, this process is obviously playing out right now. So for those who are watching, if you want to follow along, please make sure to subscribe. The links to both of our channels are right here on the screen. It's a great way to support our work. It is completely free and a great way to support independent media.

I'm Brian Teller Cohen.

And I'm Glenn Kirshner. And I'm Glenn Kirshner.

You're watching The Legal Breakdown.