Bulwark Takes - Bill Kristol & Joyce Vance: The Rule of Law in Peril

Episode Date: September 26, 2025

What happens when prosecutors refuse Trump’s demands? Bill Kristol and Joyce Vance trace a failed case that became a political loyalty test.

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19 plus to wager, Ontario only. Please play responsibly. If you have questions or concerns about your gambling or someone close to you, please contact Connix Ontario at 1866-531-2600 to speak to an advisor free of charge. But MGM operates pursuant to an operating agreement with Eye Gaming Ontario. Hi, Bill Crystal here. I just recorded a conversation live with Joyce Vance, the excellent legal scholar and commentator, former U.S. attorney in Birmingham, Alabama, about the current crisis, really, I would say, in the Justice Department, the firing of the U.S. attorney here in North Virginia, a replacement by a Trump loyalist, the attempt to now, according to Trump's orders, prosecute the former FBI director, James Comey. Really a remarkable collapse of the principal. that prosecutions, especially criminal prosecutions, are not supposed to be launched for political reasons.

Joyce explains what has happened and why this is really a major moment in the fight for the rule of law here in America. I'm Bill Crystal, Joyce Vance. We're here on a Substac Live, which will also be up later on, obviously, on YouTube, to discuss this week's developments, or more than just this week,

at the Department of Justice, where Joyce obviously served and was assistant U.S. attorney, a very important job for, was it for the whole Obama administration? I forgot. You know, I was an assistant U.S. attorney for 18 years, and then I spent eight years as Obama's U.S. attorney. I met U.S. attorney, yeah.

I never know. I never could get that assistant U.S. attorney. The U.S. attorney. There's a lot of inside baseball with the names. The U.S. attorney, but you spent eight full years, yeah. So one of the big stories, so really thanks. I'm glad we're able to do this, and let's have you and I have both written a bit about this.

You much more inside knowledge and more learning about the law. Let's talk about what's happened, particularly this week, in terms of the Eastern District of Virginia, and then more broadly what's going on with the rule of law in the Justice Department and I guess in the country. So why don't you explain what happened this week? I think most people don't quite understand the relations of all these, as you can see, I don't quite, of all these parts of the Justice Department. You know, it's confusing, Bill, and I actually wrote a column earlier this week. I was concerned there's so much news going on. It all feels so important. This felt like a story that might just sort of slide below people's radar screens because it wasn't clear how important

it was on its face. But the interim U.S. attorney in the Eastern District of Virginia, that means a guy who was already in the office, but whom Donald Trump had nominated to be the permanent U.S. attorney, so he's serving before he gets confirmed. He was fired by Donald Trump. His great sin was he refused to bring criminal prosecutions that Trump wanted, the one that seems to have triggered this was a process. He was a well-respected, I know a little, because I live in this district, he was a well-respected veteran of that office. Yeah, well-regarded. Career, but also acceptable to Trump as a nominee who nominated him, yeah. Well, you know, a 10-year prosecutor who had served in the criminal division, I think, is either the chief or the deputy chief, but as you say, had obtained

approval from Virginia's Democratic senators. And, you know, my comparison is this. When I was nominated to be the U.S. Attorney in Birmingham as a Democrat in the Obama administration. It was with approval and support from Jeff Sessions and Dick Shelby, two Republican senators. And it used to be that in the Justice Department politics didn't matter. You know, Jeff Sessions was former U.S. attorney down in Mobile. He knew it was going to be a Democrat. He picked somebody he could tolerate and crazily enough in that moment it was me. So this is somebody who had serious chops for being a good guy and knowing what to do. He had prosecuted a full range of cases, public corruption, but also drugs, sort of white-collar fraud cases. This was somebody who was well-qualified. When he makes a

decision that there is no case that can be prosecuted and declines to be prosecuted, we can be confident that he made that decision because there was, in fact, insufficient evidence to prove either that a crime had occurred or to prove the crime that they were looking at. We don't really know what the fine line on that analysis was. But as soon as it becomes clear that he's not going to prosecute the case against Tish James, and maybe these cases that we're now talking about against Jim Comey, he gets the acts. He actually resigns, but Trump has made it clear that he intends to fire him.

And so that's about that particular U.S. attorney, Eric Siebert. it's also about these cases and these defendants, but there's a much bigger picture here. This is about Donald Trump trying to use the Justice Department as a political tool and not permitting the Justice Department that our Constitution envisions sort of a due process-based rule of law system of government where facts and law govern outcomes, not the whims of politicians. And just to be clear, I mean, it's not a matter of whim or even choice, really. Do you prosecute or not? Well, this one I don't quite like or whatever.

You really have an obligation if you don't think the facts are there. If you don't think this probable cause to bring a criminal case against someone, as I understand it, as a prosecutor, you have an obligation not to prosecute. It's not as if you can say, yeah, I think I'll take a long shot on this one or something. So he did what I, and I think there was a tense and months of investigation that obviously everyone knew that Trump was interested in the possible prosecution of Comey. Various senators were claiming that there might be problems with his testimony. somewhat far-fetched, whatever, from September 2020.

And when he made a decision, his, I guess the staff recommended no prosecution, that was the decision he made, and Trump overturned it. Is that, have you seen that happen in your day, justice or since? You know, it's incredibly unusual. To your point about the importance of prosecutors not moving forward with a case where there's not evidence,

there's actually a guidance document of long-stander. It lives from administration to administration called the federal principles of prosecution. And it says that you can't indict a case if you don't believe you have sufficient evidence to both obtain a conviction and to sustain it on appeal. And what we're hearing and reporting about this case with Jim Comey is that the career prosecutors in the office didn't even think that they had enough evidence to get an indictment. they didn't believe that they had probable cause to proceed. So that's a pretty low bar that these prosecutors felt like they could not clear with this case. You know, does it ever happen that a U.S. attorney reverses the decisions of the career folks? Not if the U.S. attorney is smart and has the right people on the job, because you've got a team of agents and prosecutors working

together to build these cases. And occasionally they'll come to you and they'll say, this is a really close call boss. We'd like you to make the call on this one. And then you engage in a very robust look at the evidence in the case and the law, the legal context that you're prosecuting in. What you don't have is a president saying, indict this one. No, against both the staff and the U.S. and the U.S. attorney who be supported. So, okay, so there's, that's where things stand over the weekend. And then I think on Monday, the president puts in a different interim, a U.S. attorney for the Eastern District of Virginia and say a word about that?

So this is a woman who has no experience as a prosecutor. She was actually a lawyer in Florida. I think she was doing insurance work. She somehow was connected with the Trump folks around the time of the Mar-a-Lago search warrant being executed and becomes a very junior member of Trump's defense team. I think her one moment of fame was

but she was involved in driving a lawsuit to be filed, and there was some sort of a mishap involving timing. And that's how they ended up pulling Aileen Cannon, the federal judge in the Southern District of Florida, who sort of kneecap that case with delay. So this is not the kind of person you would expect to see become the U.S. attorney in the Eastern District of Virginia, which, you know, there are 94 federal districts nationwide.

Some districts have a little bit of a different. profile than others. And in the Eastern District of Virginia, because they have special jurisdiction over some certain kinds of cases with an international basis, so for instance, the Somalian piracy cases were mostly done out of the Eastern District of Virginia. A lot of high-end public corruption or politically tied in cases will happen there. And usually the U.S. attorney there is someone who's exceptionally well qualified. In fact, I can't think of a situation where there that wasn't the case, you know, maybe going back to Cullen, who was the U.S. attorney when I was just starting out as a young lawyer, EDVA is the first place that I ever practiced. So seeing

somebody like this, and look, I don't mean to denigrate her unfairly, it's just that she doesn't have the experience for the job. So she's appointed her appointments announced, I believe, on Monday, and then we start hearing that, in fact, she's inclined to seeking wishes to reverse her predecessor's decision, backing up the staff, that that wasn't a case they should bring here. Meanwhile, on Saturday, Trump is also sort of direct message Pam Bondi in public, though, saying, get with it, start prosecuting all my opponents here, including call me by name. I love that he said she likes you, this new woman. Lindsay really likes you, Pam.

God. Okay, so then, so now Lindsay Allegan is, apparently reporting is going to bring this case against Colin. is that right? You know, that's what the reporting is. But look, one caution that I would issue before anybody gets carried away, prosecutors don't bring indictments. Grand juries vote to indict people. And frankly, this Justice Department has had some problems, both in Los Angeles and in the District of Columbia recently, in cases that weren't nearly as controversial as this one. So we'll find out what kind of evidence prosecutors have when we learn if this indictment gets true billed, which means an indictment gets returned, or no billed, which means that the grand jury refuses

to go along. Federal grand juries have between 13 and 26 members, 13s a quorum, you need 12 votes to get an indictment. So that's a little bit of what the landscape will look like for federal prosecutors. And I think the statute of limitations runs at the end of this month. I think it was September 30th, maybe, that he testified in 2020, and it's five years, I guess. So we'll know in the next few days. Yeah, I think that's right.

Isn't that the day the government is supposed to shut down? I wonder how that's going to interplay, right? Typically, our grand juries did not sit during a government shutdown, but I'm sure that they'll make an exception here. Well, maybe they'll hurry it beforehand. So that's where we are. And, I mean, really is, I just want to come back to, I was on a call this morning with people who are gaming out. what, what was, even if they brought the case, how I probably wouldn't succeed.

And I sort of thought there was a little bit of missing the forest for the trees there among my friends, which was, the main thing is Trump is showing that he can make, he can order that these cases be brought. And look, they're not all going to, he's not going to win them all. But in a way, I think he knows that and doesn't care, right?

Or at least his people, Steve Miller, all these characters, they know that. And they, and they, they, the intimidation effect of having yourself, having to defend yourself in such a case, the signals to other U.S. attorneys that if they don't behave this way and they could go the path of this fellow in Northern Virginia, I don't know. I mean, don't you think it's a pretty, I think that's one reason you were trying to focus on this earlier this week. It's a big moment, right? It's an enormous moment because this is the president of the United States taking the power of government, which is a pretty majestic power in the criminal setting, and using it to take revenge on to torture one of his enemies, right? I mean, Jim Tomey's family is going through an awful lot right now.

Jim is going through a lot personally. I mean, this isn't about whether you like Jim Comey and think he was a good FBI director or like what he did in the 2016 election. This is about the government, using the full force of government to take personal revenge on an enemy. This is, I think, so far off the rails from what the president of the United States should do or is supposed to do or what anyone should tolerate. And the fact that we just don't have, you know, everybody in the Senate, regardless of parties, speaking out against this.

And former United States attorneys, regardless of which president put them in office, speaking out against this, I worry that we've become to such a political divide that this sort of gross abuse of power by the executive branch almost, you know, just people sort of just go, well, what do you expect? It's Trump. and they move on. And if he's not checked in this moment, even if Jim Comey isn't indicted, just the fact that he can do this, cause the investigation, bring in a substitute U.S. attorney, intimidate, as you say, people in the future. This is really a momentous occurrence for democracy. I talked with a friend, a former U.S. attorney, who's not given to hyperbole about this this morning. And he told me, this is the way democracies die, someone who's not given to being. overstated. In my little warning shots this morning, I quoted the former strongman of Peru in the 1930s,

a dictator, basically elected, sort of, but basically became an authoritarian strongman. Oscar Benevides, for my friends, everything, for my enemies, the law. And I think what's interesting about that, and I think that is what Trump is doing. You know, for the friends, money, $50,000 in cash, or billions of dollars. in deals, no prosecution, obviously, and total blind out of that. J6 people pardoned, the use of the pardon power is a part of, for my friends, everything.

But the use of the law against enemies, I'm struck by you and I talked about this a little bit the other day. I mean, the degree to which authoritarian, somehow, at first blush, one thinks about authoritarian, so you think, well, they don't like the law. I mean, they just want to have power

and they want to use it arbitrarily, which is true to some degree, of course. But actually, I think skillful authoritarians try to use the law against their opponents and against their enemies. And there's quite a lot of history of that. Isn't that? You've written about this. You know, I think that's absolutely right. I mean, I'll see your Peru quote and I'll raise you, Le Vrenti Beria, Stalin's strong man, right?

Who said, show me the man and I'll show you the crime. And they, too, used the law, right? Every dictator likes to wrap themselves in the cloak of the rule of law, and then use it to target their enemies, just like Putin does. And you're right. I actually have a book coming out, and I've written a good bit about how we have to be careful about the dictator who presents himself as duly elected and fulfilling the mandate that the people have given him.

Because, you know, not to be too old school about this, but the founding fathers gave us a lot of guidance, both in the Constitution, in the Federalist Papers. And if we go back and read that, we understand that our entire, form of government was created in reaction to kings, right? Our form of government was intentionally meant to avoid the pitfalls of monarchy and the rule of one man and to make sure that power remained with the people in a divided form of government. So, you know, I mean, it feels a little bit quaint to talk about all of those ideas because we live in a world with a president who is claiming all the powers of government for himself, a Supreme Court that seems far too willing

to go along for my taste, and Congress that I don't know what they're doing. They're just pretty much supine, but I don't think that this is the founding father's vision for those among your friends who are originalists. Yeah, right. Now, you know, I wrote about the final papers many, many years ago in my PhD thesis and stuff. And one thing that one forgets is how much they are also reacting against precisely this kind of use of the law by kings or by their ministers against political enemies or opponents of other kinds or people they just wanted to discredit

or people whose business interests they wanted to destroy so their buddies could take over, right? The whole, I mean, they were very Montesquist says, you know, the power to punish that power of government to the criminal power is an awesome and scary power. And obviously the founders gave a lot of thought both at the state and federal level of how to limit it, check it, make it,

regularize at grand juries and juries is just one one instance of that but there are others as well and um star chambers you know these things what thinks of what was that well that was actually this right i mean so in a way so i do think it's really fundamental in a way that people don't always it sounds like a little bit of a bureaucratic thing and okay you'll prosecute cormee but maybe coo will get off so it won't matter but the degree to which the i guess i my question is this i mean how worried you this is now permeating other parts of the justice Department and other parts of the U.S. government, which obviously also have legal, you know, allegations not just DOJ. I do feel like it's a very ominous step. Yes. So I think that's the

question that we don't know the answer to. Is this now permanent? Does Trump have the power to go to the Justice Department and have them prosecute his enemies? And as we've seen what borders are, Tom Homan recently, forgive his friends, right? Homan's other. under investigation for taking a $50,000 bribe in a bag, and that investigation just gets cut off early in the Trump administration, which is in many ways equally as shocking, if not more so to me. So to go back to Monoskew, right, Madison is a huge fan of Monoskew, and he picks up on the notion of three branches of government and spreading the power in that fashion. and what Trump is doing is overriding, that envisioned divide, even though the Justice Department

is part of the executive branch, and that's the argument that Trump makes, ultimately, it's sort of a unitary executive theory on steroids that says that the president can make every decision that's made in the executive branch, and no one can tell him what to do, no court can look over his shoulder. No Congress can impose limits on his abilities to hire and fire. And so we now have a president who says, I can decide who gets prosecuted and who doesn't get prosecuted. And the basis is no longer the facts and the law. The basis is what I want. If that becomes the operating principle in the United States, then we're in an extraordinarily dark place. And so I think this is the moment for people who felt funny going out on the streets and holding up placards and protesting or who think that

their members of Congress don't listen if they write or call. I think this is the moment. It's an all hands-on-on-depth sort of exercise where we all need to figure out how we can influence the wheels of democracy to make sure that they keep turning. That's so well said. I mean, one last question. You know somebody people in the Justice Department and Maine Justice in Washington, but obviously in many of the U.S. attorney's offices and many other parts of the federal government that have offices of general counsel and so forth. I always felt in the first term,

several things checked Trump and prevented things from getting worse than they were. Something's got pretty bad, but obviously the internal checks, the internal guardrails were pretty substantial. Both people at the top of agencies like Jim Mattis or Mark Esper, Sessions, Bill Barr, whatever you think of him,

but there were lines he wouldn't cross and certainly his top colleagues were, but all the way down the totem pole, there were other people who were clearly saying no or say, wait a second, including Dom McGahn and the White House and so forth, right? There are many stories of this.

What feels is that there's almost none of that, at least at the top level in the second term. So I said to someone the other day, shouldn't the White House counsel have problems with this? Maybe someone should resign as the person I was talking to said, well, who is the White House counsel? We even heard the name of the White House counsel? You know, I mean, these people have just disappeared,

I guess, but I guess I wonder about the mid-level, upper-mid-level people in justice and elsewhere and in U.S. Attorney's offices as they're being asked to do these things. They obviously have huge pressure on them. They have constraints. They have obligations. They have their job. On the other hand, they probably think a lot of them, this is wrong. I don't know. What do you think they're thinking? How much of a barrier do you think they can be? The nature's ultimately have to kind of go along. I've always thought that's a little harder to just snap your fingers. and get, you know, thousands of attorneys in the Justice Department to kind of tens of thousands, I guess, to automatically give up their principles. But I don't know. I guess the pressure is pretty great on the other hand.

I mean, I think it is hard to get them to give up their principles, you know, 93 offices spread out across the country. Here's U.S. Attorney Trivia. There's 94 districts, 93 offices, because Guam and the Mariana Islands share a U.S. attorney. So when that comes up on jeopardy, you all know the answer now. And there's a lot of autonomy in the district. There are a lot of districts that historically don't appreciate intrusion from Washington. But every one of those offices is now helmed by a Trump-appointed U.S. attorney, whether they've been confirmed or not. And so a lot of the issue will come down to who those people are. We've already seen a resignation in the Southern District of New York, where the U.S. attorney resigned when she was told to dismiss that office of case against Mayor Eric Adams.

and the reason folks might recall is because the Trump administration had won a concession from Adams on helping them enforce immigration policy and deportations, as long as the criminal charges against him were dismissed. I mean, that was shocking, and that outrage sort of erupted and it faded, and now we find ourselves in what a lot of people will tell you is the second most important district in the country after the Southern District of New York. I think people in the Eastern District of Virginia would say they're at the top, but I try to stay out of that match. And what happens in other districts, right? There's reporting, I've heard Ken Delaney and for MSNBC this morning saying there may be cases against Jim Comey in other districts. So what happens if you're in an Atlanta or if you're in a Birmingham, quite frankly, and you're looking at these very different sorts of prosecutions in different places? look, Bill, the best thing I can tell you is this. It's wrong to insist that federal prosecutors across the country bear the burden of democracy entirely on their shoulders. These are people,

you know, I didn't make any money as a federal prosecutor. I mean, I'm just going to say, but you know what? I had good insurance and four kids, and it would have been tough for me to walk away from my job. You also lose whatever you've been working for towards retirement. So I understand this desire to see people stand up and resign if they're asked to do the wrong thing. I think a lot of them will, and they will do that even though it will put their families in difficult situations. I hope law firms across the country will find a way to support anybody who does that. For some people, it may just not be a reality to lose medical insurance with sick kids or a sick spouse or something like that. But career folks, no matter who hired them, I'm a Republican hire, I was hired when Dick Thornberg was the Attorney General, you're taught to set aside your beliefs, your politics, your religion, your friends when you walk in the door, and to evaluate cases only on the facts and the law.

And as quaint and outmoded as it sounds, that's what 99%, probably 99.9% of the federal prosecutors across the country do. They don't care who's in the White House. They don't care who the president does. They don't care what directive they're being given. They will find a way to do what they believe is the right thing. I hope we will all support them if that moment becomes public and loud. I think that support point is so important and it's not made enough, both in the sense of people being willing to help them. them if they do resign, whether it's law for jobs or just other kinds of temporary employment, perhaps, and various, they're obviously very well-qualified people that do a lot of things, but also to while they're in the middle of this, and maybe it's a lot of it's, we don't know about it, of course, a lot of it's confidential, but making clear to them that they have a lot of support out there and they will be backed up and they won't be left all alone. I do think there's

more, you know, Democratic members of Congress and, of course, some Republicans should do it, but state legislatures, a lot of people could reassure, you know, people who are, you know, people who are prominent in their communities, business leaders, obviously legal leaders in law firms could, it wouldn't be bad to have some of them speak up now and say, hey, look, we don't know who we're speaking to. We don't know if it's John Doe in Birmingham or Jane Smith and in Phoenix, who's being asked to do things they shouldn't do. But we will be with you if you feel you have to leave or if you're fighting internally. No, we're within the limits of what we can do. We'll be speaking up for you and making the case for the will of law. I do feel like there's not enough,

as you say, you can't just ask these people to bear the whole burden. Yeah, I mean, look, there are plenty of senators and members of the House of Representatives who are former prosecutors, Republicans and Democrats. And I just think it's appalling that those people won't all stand up and say what they all know is true. Anyone who has ever served as a prosecutor, even as a military prosecutor, understands that this is a dame. moment. And, you know, the cowardice, I think, is inexplicable, but something that we're seeing in this country right now is that courage really is contagious. And it would just take one or two people to break ranks with Trump on this issue, I think, you know, for the country to have a have you

no shame moment and to sort of just say, this is wrong. This is just not something we can tolerate as Americans. You know, it was last week, right, that Ted Cruz and others said, hate every word that comes out of Jimmy Kimmel's mouth, but he has a First Amendment right to say it. And that was an important moment. We need more moments like that. Well, Joyce, thank you for saying that so eloquently for speaking up here. And I hope people watch this and watch you in other places. And I hope a lot more of our friends and colleagues also make this point. I couldn't agree with you more. It's just to people sort of say, well, don't worry. There's some great people in the Justice Department. I'm sure that's true. But it is too much to ask them. They need a little reinforcement and support both public

and private, I think. Yeah, I think that's right. Thanks for having me. This has been fun. Did I tell you that my husband is a huge fan of yours and reads every word that you write? I don't know if he's still done about how you married so well. That's very impressive. I did marry well, didn't I? He's a smart, thoughtful guy, just like you. Well, I love your stuff too. So Joyce, thanks so much for taking the time today and thank you all for joining the two of us on this conversation. Thanks for having me. Thanks, y'all.