Archon Fung: Hey, folks. You’re listening to Terms of Engagement. I’m Archon Fung, a professor at the Harvard Kennedy School and director of the Ash Center for Democratic Governance and Innovation here.
Stephen Richer: And I’m Stephen Richer. I’m the former elected Maricopa County recorder, and I’m now a senior practice fellow at the Ash Center at Harvard Kennedy School.
Archon Fung: And just to remind everyone, everything we say here is our individual opinions and doesn’t reflect any views of Harvard University or the Ash Center or the Kennedy School.
Stephen Richer: And last week we got a lot of questions and comments in the comment box and we were able to answer a lot of those. We encourage that. So if you have any questions about what we’re talking about or about the general topic or anything that we say, put them in there and we’ll try to answer as many as possible.
Archon Fung: All right. So there’s been a lot of news and everything, everything, everything like a decade’s worth of news in a week and a half, including the president signed a memo directing federal resources, the National Security Presidential Memo slash seven directing federal resources to domestic terrorism, which we’ll talk about. There has been the deployment of federal troops to Portland. And just this morning, there was a meeting between President Trump and Secretary of Defense Hegseth and many, many generals extending pretty far down the chain of command. And I wanted to show a quote from something the president just said earlier this morning. If you could show the quote.
So the president says, “this is gonna be a big thing for people in this room. [That is the command staff of the US military] because it’s the enemy from within and we have to handle it before it gets out of control.” Trump told the generals, “it won’t get out of control once you’re involved at all.”
So some people might read that as a relatively menacing kind of threat about deployment of the military on the U.S. territory. And we’ll investigate that in the second part of our discussion. But one big thing that also happened last week was the indictment of Jim Comey. former FBI director Jim Comey.
Stephen Richer: So it’s a lot. It involves law. And so to help us make sense of all of it, we’ve invited professor of law at Harvard Law School, Alex Whiting, who is going to be joining us today. Professor Whiting has a rich background in criminal law, both in the US context and in the international context. He served as a federal prosecutor for a good number of years. He is now teaching federal criminal law, among other things. He received his bachelor’s degree and his law degree from Yale University, and he is also clerked for the federal district courts. And so really an expert that we’re bringing in. We’re appreciative of his time and his willingness to make sense of some of this.
Archon Fung: That’s great.
Alex Whiting: Good afternoon. Nice to see you both.
Archon Fung: Great.
Stephen Richer: So tell us everything that’s happening. So a lot of people have said that the James Comey, the indictment of James Comey is a crossing of the Rubicon, that we are entering uncharted territories. And then I’ve seen, of course, other people on the Internet who have said, well, guys, weaponization of the DOJ happens all the time and this is nothing new. And so what are you so fussed about? Where do you lie on that spectrum and why?
Alex Whiting: I land absolutely in the first camp that this was crossing an important red line. I think for many career prosecutors, former career prosecutors, this was enormously concerning. I think last week for both of your topics was a really big and dramatic, potentially very dramatic week. And I’ll tell you why I think it’s crossing a line for the Comey case.
Yes, there have been political folks prosecuted in prior administrations, but not every prosecution of a political actor is weaponization. Here, there was something very different that happened that really has not happened for decades. And there are a number of things that happened. Number one, the president himself indicated, basically instructed the Attorney General to prosecute James Comey. And that just doesn’t happen.
The tradition, the norm has been to keep the White House, keep the political considerations away from the Department of Justice. They operate independently. And all the other political, quote unquote, prosecutions that we might talk about, that was done. It was independent. Secondly, he… installed somebody, he ordered Bondi basically to install somebody who had no prosecutorial experience, who was Lindsey Halligan, who was there to do, his former defense lawyer, there to do his bidding. He fired, basically fired, he resigned, but he was under pressure, a career prosecutor that he had nominated before solely for the reason he got fired just because he opposes prosecution and other political prosecutions. And the handpicked U.S. attorney went against the advice of all the career prosecutors and brought this case.
Stephen Richer: Finally, do we know that as a certainty? I’m sorry. Do we know that as a certainty that he went against the advice of all the prosecutors? Obviously, the charges had not been brought prior to the dismissal of the former U.S. attorney for the Eastern District of Virginia. and the appointment of um i forget what her last name is lindsay lindsay halligan to that position but do we know that she received advice that this was not an appropriate prosecution.
Alex Whiting: Well this is based all on on reporting but it seems there’s been quite a bit of uh consistent reporting that when she came into the office. And she only had a week to make a decision about this because the statute of limitations was going to run on the case. So she was moving very quickly. The reporting is that the senior career prosecutors in the office presented her with a memo explaining why the case should not be prosecuted, that there was insufficient evidence to bring it to court. And that was sort of borne out because It’s clearly a very weak case. They offered three counts to the grand jury. The grand jury refused on one of the three counts, which is something that just really doesn’t happen. That is very unusual in federal court that the grand jury refuses an indictment on any charge. And then the two charges that were brought on their face look very weak, and there are only fourteen grand jurors who voted to bring that charge, which is enough, but that’s far below the number that you usually see. All of those indications, starting from the fact that this prosecution was ordered by the president, we’re in a different territory there. That’s just a different ballgame. That is unlike any other case that we’ve seen before.
Archon Fung: But how would you respond to somebody in the right who says, well, maybe this is a little bit of an escalation, but it’s of a kind of political tit for tat in special prosecutions and other kinds of political prosecutions that have been happening for a long time. Most recently with the investigations of President Donald Trump himself. But before that, back to Bill Clinton and Whitewater and Kenneth Starr. And this is just part of the cycle. It may be getting a little bit worse, but it’s not different in kind. How would you respond to that thought?
Alex Whiting: Yeah, see, I would reject that. That to me is missing the details that are important here. It is different in kind. And yes, there is a story. I think there is a story about whether we have criminalized our political process and whether it’s a good idea to go back, have back and forth investigations. And we’ve moved more and more towards, you know, each administration, there’s a criminal investigation there, whether it’s initiated by Congress or there’s a special prosecutor. And there’s a lot of debate about that. But this, but this is a different thing. All of those cases, whether they were brought by Republicans or Democrats, whatever the situation, they were all done professionally and either by an independent justice department or oftentimes by a special counsel. You mentioned the cases brought against President Trump. He was then not president but became president. Those cases were brought by an independent counsel, and they were not ordered by the White House. And here, it is the combination of all of these things, which it’s bringing a weak case that the career prosecutors opposed, ordered by the president, by a handpicked U.S. attorney. You put all those things together, and it’s a difference in kind.
Stephen Richer: Now, you said at the outset that this hadn’t been done for a long time, but it seemed to suggest that this has been done at least once before, at least maybe in the last, I forget what it was, thirty years, fifty years or something like that.
Alex Whiting: Well, people in the Department of Justice talk about post-Watergate because the Watergate years certainly uncovered abuses of the federal investigation process of the FBI, the Department of Justice. But even at that time, and you had Nixon, of course, using the resources of the FBI to go after political enemies. And so that’s the That’s the past that we’re talking about. Since then, I think we’ve had a consistent history where both political parties, while there have been an increasing turn towards the criminal law in terms of their political opponents and accusations of violations of criminal law, they have nonetheless respected this line that has now been crossed. And the danger of this line being crossed, you have to appreciate what this means, is that now we could be entering a world where the president could order his Department of Justice and the FBI, which have vast powers, investigative powers, to target his political enemies. And but all signs are that’s exactly what he’s doing. Comey is not an isolated example. The Attorney General of New York, Adam Schiff, Christopher Wray, perhaps, were going down the line. If that continues, if this doesn’t get stopped, we’re entering into a very dangerous world.
Archon Fung: I have a question about the contemporary political importance of this. Maybe if I were in a more optimistic mood, I would say, well, the president is exacting retribution on people who have wronged him in the past. Like, as you say, Letitia James, Fonny T. Willis, maybe Christopher Wray, maybe John Bolton, whether they’ve wronged him or he perceives that. But that’s settling old scores. And we shouldn’t be so worried about it for our politics going forward because that’s a different dynamic. That’s looking forward, not to the past.
Alex Whiting: I mean, I don’t I if we go down this road of. punishing political opponents, even if they exist in the past, I think you’re opening up a box that can continue to be expanded. What’s to stop the president from continuing to focus not just on past politics and political enemies, but on new ones, current ones, and using the vast resources of the Department of Justice and FBI to target political enemies. And the next topic that we’re going to talk about suggests that he may very well be inclined to do that. And again, once you open this box, what are future presidents going to do? We enter into a world, again, if this doesn’t get stopped, If this doesn’t get contained, we enter into a world where the criminal justice system now becomes a purely political tool.
Stephen Richer: So for those who are interested in recourse, this strikes them as terribly wrong. And I’m not talking as much about what James Comey should do now, whether he should move to dismiss the complaint, how he’ll defend himself. Yes, he said he wants a trial. He welcomes a trial. But in terms of just the process, is there any recourse for… for bringing a politically motivated indictment or criminal charge against someone? For instance, is the U.S. attorney for the Eastern District now in any sort of jeopardy if the court finds this to have been a politically motivated prosecution?
Alex Whiting: Well, I think that for James Comey, his case is going to end badly for the government. However that proceeds, it’s going to end badly. But to your broader question about what the recourse could be and what the consequences could be. I mean, I think that there could be, if this turns out the way I think it will turn out, there could be very severe reputational and perhaps professional consequences for the lawyers involved in this, including the US attorney, this recently appointed US attorney, Lindsay Halligan, in the Eastern District of Virginia, there could be bar consequences. And certainly her reputation, if it hasn’t already been tarnished by what she’s done here, will suffer as the case runs its course.
Stephen Richer: Do you think she cares? Do you think that attorneys in this new Department of Justice, in this new world that is dominated by Trump politics, he doesn’t seem to pick attorneys who have the cleanest record, who were at Jones Day or at Kirkland and who clerked on the Supreme Court. So I guess how much work do you think the reputational component can really do?
Alex Whiting: Well, it’s a good question. And there may be instances where the folks involved just don’t care. You may be right. If you look at President Trump’s history, he has a long history of bringing people close into his circle. They do his bidding, and then they end up burned. They end up suffering the consequences. They end up discarded, used. Many of them have turned against him for that reason. And so… It may be that Lindsay Halligan will never really suffer any consequences or won’t care. But I think it’s more likely that it will have consequences for her going forward.
Archon Fung: I wanna tap in to your international experience and expertise for just a minute on this question. So a lot of people in my world, the kind of people worrying about democratic backsliding and so on, look at the examples in Brazil with the prosecution of Bolsonaro and in South Korea and say, why can’t we have that? Or even in our own history, Watergate, why can’t we have that? But then I’m thinking, well, if you’re going to prosecute political officials, then maybe the road for every South Korean Brazil, you also have to have a Jim Comey. Is there a way to separate out a system with valid political prosecutions that end up defending democracy from those that may weaken it?
Alex Whiting: Yeah. I mean, look, it’s not to say It’s not to say that everything that the Department of Justice did before last week was perfect and they never made mistakes and there’s no criticism. I mean, there are absolutely fair debates to be had about some certain decisions made by the department and certain directions. And again, how we think about the criminal justice system with respect to our political process. However, I think, and I also think that it should be possible for this country to bring charges against, for example, former presidents without thinking that that’s going to mean that without that sliding to, well, now every president is going to be prosecuted and we’re in a tit for tat and so forth. The prosecution of President Trump former President Trump, was the first time that a former president had ever been prosecuted. This was not, and so there’s no reason to necessarily, like some people thought, well, that’s going to open the door and here we go. And as you suggested earlier, some people cite that as a justification for what’s happening now. I really think that that was a very different case. It was done differently. There were different facts. It was different underpinnings. And that doesn’t, I don’t think that we have a future of those sorts of prosecutions necessarily. You asked me about my international experience. Of course, I prosecuted international crimes in The Hague and I did it in, I prosecuted cases arising from countries where the rule of law had broken down. And so I’ve seen this up close and personal, where the rule of law breaks down and the justice system is used by political leaders to target their enemies. And that is something that separates this country. That is a key thing that separates this country from many other countries in the world. Something we should be proud of and it’s something that we need to cherish. And I’m concerned that we’re sliding away from that.
Archon Fung: Great.
Stephen Richer: Knowing that, do you still think that strategically, not as a matter of fact and a matter of law, do you think strategically it was still the right decision to appoint a special counsel to investigate President Trump’s involvement in January 6th? Now, I’m setting aside the prosecutions in Georgia and I’m setting aside the prosecution in New York because, of course, those were brought by state-level political actors. But in terms of
Archon Fung: And you’re even setting aside the merits right you’re just thinking setting aside the merits.
Stephen Richer: But if you’re counseling president biden at the time on whether or not to appoint a special prosecutor or or maybe you were uh counseling the attorney general uh at the time and you know would this color or change in any way how you viewed that decision.
Alex Whiting: Yeah, I mean, that is a good question. And you can look back and try to think about cause and effect and where we’ve come right now. It was the Attorney General who appointed the special counsel pursuant to regulations. And remember that he appointed the special counsel not just for January six, but also for the documents case in Florida, the retention of classified documents by the former president. And, you know, the problem is, yes, you might say, well, maybe that was a mistake because we’ve unleashed this and here we are, right? But the consequences of not proceeding on those cases would also have consequences on our political life. And we’re talking about cases where there was strong evidence of wrongdoing. In the January six case, over a thousand people were prosecuted. They’ve now been pardoned, of course, but they were prosecuted for what happened on January six. And there was the case alleged fraudulent conduct from just after the election until January six, including involvement in the events on January six. And then the documents case had alleged strong evidence about the retention of illegal documents. If the government had just done nothing, what does that say about the rule of law and who is above the rule of law and the power of the department to hold everybody in this country accountable?
Stephen Fung: So before we switch to the other topic i i do want to correct myself because I slipped there and I said advising president biden and an important distinction between the present moment and the prosecution of donald trump is that as you mentioned it was merrick garland the attorney general who appointed the special counsel who was a long-standing prosecutor who had a exalted history and sterling reputation as a prosecutor and so just again if we’re not even looking at the facts but the process that is a way in which the present circumstances can be distinguished from uh the circumstances four years ago say great that that’s right.
Alex Whiting: I’m glad you emphasized that because I think those are important distinctions in the process. I think that those are critical distinctions Good.
Archon Fung: So we have a few minutes left and I wanted to move to a different topic that’s been far less in the news in the in the weeds, if you will. And that is people should look this up on Google. Google National Security Presidential Memo seven, which was released last week in which the content of the memo is to direct Attorney General Bondi and other offices of the federal government to investigate and disrupt domestic terrorism. And this is in the wake of the Charlie Kirk assassination. You guys, both lawyers can explain to me whether I should be very worried or not at all worried about this memo. I don’t exactly know how to read it because the preamble, the preamble is different from the substance. And so here’s a phrase for part of the preamble. It says that, “the anti-fascist lie has become the organizing rallying cry used by domestic terrorists to wage a violent assault against democratic institutions and constitutional rights and fundamental American liberties. Common threads animating this violent conduct include anti-Americanism, anti-capitalism, and anti-Christianity, support for the overthrow of the United States government, extremism on migration, race, and gender, and hostility toward those who hold traditional American views on family, religion, and morality.” And then it goes on to say that the network that supports this violent activity includes foundations and maybe even educational institutions and groups in society. And so as someone who doesn’t have a JD, I’m reading this and I’m getting really nervous that there’s a huge conflation of protected expression and political activity with domestic terrorism. And I’m worried that the offices of the federal government, law enforcement, prosecution and investigation will be directed to groups that maybe I’ve gotten grants from to do my research or maybe even the Ash Center itself. But then my friend Stephen tells me, but this doesn’t change any laws. And so maybe that might make it OK. So should I be very worried or not at all worried?
Alex Whiting: So if I may jump in, I think it’s very concerning. If this order gets implemented the way it’s written or potentially the way it’s written, I think it’s very concerning because, as you say, it describes the problem in breathtaking terms in terms of what is, quote-unquote, domestic terrorism and who might be involved in it and how you might identify it. It’s so broad that it can it could lead to the investigation and targeting of many of lots of different kinds of First Amendment speech or First Amendment activity. And it doesn’t just say this isn’t just a kind of abstract document that says, oh, this is bad. We should do something about it. It is very consequential because it mobilizes the existing joint terrorism task forces to start to focus on this. And it orders them to focus on these sorts of activities. Now, who knows if this actually gets implemented and if it actually, you know, they follow through on it. But if they follow through on it, it does, it could mean, I mean, there is the potential of tremendous abuse here that’s been licensed that that groups and organizations that are engaged in protests or campaigns or kind of speech that is perceived as anti-American or anti-family or one of these different bases will now be investigated and targeted. And even if you’re not charged, just being investigated can be enormously consequential.
Stephen Richer: So I think I’m not an alarmist by nature, but perhaps that’s not the right MO these days. And I thought at the outset, the language that was even more eye opening was the enemy within. Yeah. Which hearkens to McCarthyism, which hearkens to Japanese internment camps, you know, taking tools. When we think of terrorism, we think of actors abroad, but taking those tools and deploying them domestically. but it doesn’t create any new federal law. And so what would people be charged with potentially? Would they be charged with terrorism, domestic terrorism? I don’t even understand that to be a thing. Or is this just a mobilization of more resources to then use the same possibilities that people could be charged with previously?
Alex Whiting: Yeah, I think that’s, no, I think that’s right. I think it doesn’t create new laws and domestic terrorism is not really a thing, but, but, but the, but the, and this connects us back to the Comey case. We like the, the federal criminal laws are quite capacious in ways. And, and in terms of finding grounds for charging somebody or investigating, if there’s any kind of violence that’s involved, there can be hooks for investigation. So it may not be called domestic terrorism in the law, but there’s other kinds of violence or intimidation or things like that that can be deployed to investigate. And again, it’s not just the people who might be participating, but people who are funding or who are supporting could get investigated. And again, it’s the investigation itself can be extremely costly to defend or to organize yourselves against, even if it doesn’t ultimately lead to charges. I’m also not alarmist, by the way, and I find this alarming.
Stephen Richer: So I think that what professor whiting said about simply the act of being investigated or being charged is so important because i think a lot of people say even about the james comey situation that well he’ll be exonerated in the end.
Archon Fung: It’s badly charged so why should we worry about it.
Stephen Richer: Right yeah just anyone who has worked in law enforcement anyone who has worked in a prosecutorial context will tell you that the mere act of the federal government investigating and certainly if you’re being charged is sufficient to turn your life upside down, where at the very least, you’re going to be walking out with elevated blood pressure and quite the legal bill. And just for what? So, Alex, I liken this memo more to an attorney general’s memo to the whole DOJ advising what types of claims they’re going to pursue than I do. It’s sort of unusual to see it coming from the president rather than from the attorney general, something like this.
Alex Whiting: Yeah, that’s right. I mean, again, again, underscores the we’ve seen a pattern of this. And that’s why the you know, that’s why the the Comey thing is is also significant because it’s part of a broader pattern of the White House directing the Department of the Affairs of the Department of Justice. So the breakdown in independence is not just in the Comey case. It’s across the board with respect to all the activities of the department. And here’s another instance of that.
Archon Fung: Thank you very much for that. Well, on that sobering note, we’re about at time. As promised, we don’t talk for more than thirty minutes, so you don’t have to listen for more than thirty minutes. We hope you join us next time. If you have comments or suggestions, please send them to info, I-N-F-O at ash.harvard.edu. Thank you very much, Professor Whiting.
Stephen Richer: We appreciate it. And we will we see some of those comments and we might even address the twenty twenty election and the sort of the new interest in that and in a future future episode. Great.
Alex Whiting: Thanks for having me. That was great. Yeah.
Archon Fung: Thank you very much. And a huge thanks to Colette and Courtney and Sarah for making this podcast possible. Great. See you guys next week.
Alex Whiting: Thank you.
