This conversation was recorded on Thursday before the indictment of New York Attorney General Letitia James.

'On Wednesday, James Comey was arraigned in a Northern Virginia courthouse. The former FBI director entered a not-guilty plea after his indictment on one count of making a false statement to Congress and one count obstructing a congressional proceeding. Our Katelyn Polantz was outside the courthouse.

The plan for the defense is to challenge every way they can how this prosecution has been brought, how the indictment was brought, and the work of Lindsay Halligan, the U.S. Attorney. They're also going to challenge the case on a couple other grounds, vindictive and selective prosecution. They're going to allege grand jury abuse. They're going to allege outrageous government conduct. The prosecutors, the Justice Department, they're not ready. But the judge made clear that he doesn't think this is complicated and this should move very fast. January 5th is the trial date, less than three months from today.

The journey to this extraordinary moment was littered with controversy, and the stakes could not be higher for the very bedrock of American justice. That's why I called up Elie Honig. He's a senior legal analyst here at CNN and a former federal and state prosecutor. He also has a new book out, When You Come at the King, Inside DOJ's Pursuit of the President, from Nixon to Trump. I'm David Chalian, CNN's Washington Bureau Chief and Political Director, and this is the CNN Political Briefing.

Elie Honig, thank you so much for joining me. Appreciate it.

It's a great moment to talk to you, David.

When you see Donald Trump direct his attorney general to prosecute a former FBI director that he has made clear is a political enemy, he considers, of his. And that is exactly what happens. The Department of Justice, it moves through, gets a grand jury to indict, and now we see Jim Comey, a former FBI director, in court pleading not guilty. When you see that all together, what goes through your mind?

You hit on the exact reason why this is such a big deal and different, fundamentally different from anything we've seen before. And I do, you know, a historical overview of this in the book, which I know we'll talk about in a minute. But there's two reasons why this has such a huge story. The lower important reason is because of Jim Comey and who he is and that he was this distinguished federal prosecutor and high profile FBI director and has been involved in, and I think not conducted himself in the best way in some of the biggest stories of the last 10, 12 years, notably his mishandling of the 2016 investigation of Hillary Clinton's email. But it's Jim Comey, he's a huge name, former FBI director, now sitting at the defendant's table. But that's the B storyline. The A storyline, David, is what you said. This is the first time, I'm certain of it, I've done the history here, that we've ever seen a president explicitly and publicly ordering, instructing his justice department, prosecute this person. And the reason Donald Trump barely tries to hide this, in fact, he even celebrates it, is because that's a guy who's crossed me. That's an enemy of mine, and I want you to go after him. And the fact that they did it, the fact they listened, the fact the fired and lost or pushed out various conservative leaning career prosecutors to get there, makes it all the more egregious.

I want to pick up on that last point that you just made there because it wasn't just, Do this. Yeah, no problem, sir, because we're already like totally on board with this. It actually he was directing them to do something in contradiction to what some career prosecutors thought was actually there. Is that not true?

That is exactly right. And you know, we of course don't at this point know all of the evidence, right? We won't know it until trial, but there are some indicators out there that show me that this case is going to have major problems. One, as you said, several career prosecutors who are working this case reportedly put together a memo saying it's not there to charge. Second of all, Eric Siebert, Donald Trump had put this person in place as the U.S. Attorney, a conservative, a person who's been at DOJ for a long time, essentially ended up resigning under pressure because he didn't want to bring this. We've seen reporting that both Todd Blanche, the deputy AG, and Pam Bondi, the attorney general, had voiced some concern. And here's a big tell for you, David...

Though they are both, we should note publicly on board now. They've both been out there.

Right. Singing a very different tune, but that is reporting about what was happening behind the scenes. Here's another piece of reporting that I find really interesting. John Durham, you may remember this guy. This was the guy who was the investigator special counsel after Mueller. He got appointed by Trump, by Bill Barr. He spends four years, John Durham digging through every nuance of the way the FBI handled this investigation. Everything Jim Comey and the FBI did, 2015, 16, 17. Came up with he stretched to charge three people, two of whom went to trial and were acquitted. That's how desperate John Durham was to charge people. And even he didn't charge Jim Comey. And we've seen reporting that the Jim Comey prosecution team talked to Durham and Durham told them, look, I didn't find anything in there. So those are some pretty powerful indicators that this is a weak case.

And we're talking about Jim Comey being accused of lying to Congress, right? That's fundamentally what this is about under oath. I guess, I know you said you've not seen anything like it. And I take that point fully. And, I'm not trying to draw a direct parallel. From Trump's perspective, and I know Joe Biden never got out there and publicly directed Merrick Garland to do something, but he believes, or publicly directed Jack Smith to do something. In Trump's mind, he believes this is precisely what happened to him, right? Like that he thinks that he was targeted for a political prosecution multiple times in the time that Joe Biden was in office. We have no. There's no evidence to support that, and I couldn't be more clear about that, but I think my sense in talking to people in Trump world, that is why he sees this as a totally justified thing that he's doing.

Well, I think Trump's got it half right there, actually. You are correct. And what makes this different is there was, there's no evidence that Joe Biden ever directed any of these cases, Joe Biden. In fact, there has been reporting, and I have some of this in my book, that Joez Biden was sort of baffled by what was going on at DOJ and was at times frustrated with Merrick Garland one way or the other. So there is no evidence that Joe Biden instructed, directed, encouraged this prosecution of Donald Trump. However, Donald Trump does have a fair point. It does not justify this, but I think Democrats and liberals need to own the fact now that some of the state prosecutions, the Letitia James, which is not a prosecution, but it was a use of her power as AG to sue Donald Trump for hundreds of millions of dollars, that was political. That was targeting. That was weaponization. And we know because she ran on it. She said, vote for me. And the number one thing I'll do is somehow nail Donald Trump. I think people need to come to grips with the fact that Alvin Bragg's case, I know it resulted in a jury verdict. That was ridiculous, the way he put together those charges, which various other prosecutors had passed on. I think it's still gonna get thrown out on appeal. The Fani Willis case, that thing collapsed in disaster. And so I think that in order to have credibility on this issue, people on the left need to acknowledge that yes, Donald Trump was targeted by one, two, or three of those three prosecutors, I think all three that I just named. And if they can't admit that, and if you cheerleaded while those three prosecutions, overtly political, were running away, then I don't think you have the credibility to criticize this. I'm not saying two wrongs make a right. I disagree with that. I think they were both wrong. But in terms of complaining now, I want to know where were you when it was being done to Trump?

And by the way, even if you are of that mind that Letitia James pursued a political prosecution, that would not justify bringing charges about her and mortgage fraud if there isn't the evidence there to support that she did something wrong.

Exactly, and look, we all know that that's a pending investigation. From what I've seen of the evidence in that case, that's ridiculous charge. As you can tell, I am and have been a sharp critic of both Letitia James and Jim Comey. However, I think that retributive payback revenge prosecutions are absolutely wrong and dangerous and not justified by well it was done to me. I think the way I would recommend we deal with this is let's all be straight here. It was done to Trump. Now he's doing it to Comey in a way that's worse because he's president. Both were wrong. All this crap needs to stop.

And it really is, I mean, I think of that image of, you know, at the Justice Department outside courthouses, of justice in a blindfold, and if we go down this road of back and forth, that is ripping off that blindfold.

Where does it end, right? That's the question. And first of all, you know, Trump said at some point last week, something like, I'm paraphrasing here, but I think we're going to see more of these. And I wanted to ask him, not that I've ever spoken to him, but I want somebody to ask him, of what? When you say of these, and it's clear, I think, what he means, which is people who tick me off, whether it's,.

Well, he's given his list. I mean, he mentions Letitia James and Adam Schiff.

Right. It's in the TruthSocial, right, "Shifty Schiff," and Letitia James, and he doesn't say Lisa Cook in that particular one. But we know who is on his list. So where does it end for the next three years? Is this going to be just something, is Comey gonna be the first of a dozen? And then even more to the point or more broadly, what happens when the next president gets in? What if it's a Democrat? Do we then see it fire back the other way? What if it's JD Vance? Does he continue it? And that's what alarms me so much about this. We are now seeing this downward spiral of retribution.

Which is not, I don't, I think it's safe to say, not how this was designed to operate.

And I should say, the wall that has been breached here is the traditional wall of independence between DOJ and the White House. Now look, I worked at DOJ, I've done the research, I'm done the reporting. That wall has been compromised at various times, right? But never just smashed down the way Donald Trump is doing it now, where he's explicitly, publicly telling his AG, I want this person prosecuted. I want that. And I should add, there's a defensive piece of this too, where Pam Bondi has made clear, she will not be investigating. Certainly not Donald Trump, but nobody in or around his orbit. I mean, look at the Signal scandal. She didn't even open an investigation of Mike Waltz when in the past, that kind of case would have at a minimum required an investigation. So I think Pam Bondi has made very clear that she's there to do Donald Trump's bidding in a way that we've not seen from any prior AG.

We're going to take a quick break, we're going to have a lot more with Elie Honig in just a moment.

'We're back here with Elie Honig and I want to talk to you where we just left off in our conversation about that wall of independence and at times it has been breached. Perhaps it is in the process of being shattered entirely now, but the notion of how you get true, a truly independent pursuit of some political players when it comes to investigating and prosecuting potential breaks in the law, you have this new book out, 'When You Come at the King: Inside DOJ's Pursuit of the President, from Nixon to Trump', and what you really look at here is the history of the independent counsel now special counsel uh how this sort of sub-world inside or separate and apart from the Justice Department with a lot of autonomy to pursue some of the most high-profile political investigations that we have seen in our lifetime. Can you give me just a sense from your reporting or give listeners, I should say, just a little bit of history first before we delve in here just in terms of, you know, when Ken Starr was investigating Bill Clinton, he was known as an independent counsel. When Bob Mueller was doing the Russia investigation, it was a special counsel, what is this role and how has it transformed?

'Think of it in three historical eras. First, there's what I call the Wild West era, and that's from Ulysses S. Grant, by the way, fun trivia fact, was the first ever U.S. President to appoint an outside prosecutor in the 1870s, all the way through the end of Watergate. And I call it the Wild West era because there were no rules they were making this stuff up as they went along they all understood the fundamental notion we need some outsider this is too sensitive there's maybe a conflict here but there was no rules. John Dean who we both know you're a colleague of ours talked to me for the book and John said it was ad-libbed for Watergate. It was being made up as we went along. That's era one. Era two kicks off in 1978 with the passage because of Watergate we all said Oh boy, we need some rules here we passed- The Independent Counsel Act passes through Congress. And that remains the law for the next 21 years until 1999, when after several reauthorizations, Congress just gets to a point after the Ken Starr debacle and several other lower profile, but still very important failed prosecutions of Mike Espy, Henry Cisneros, it's agreed mutually, Republicans, Democrats, this thing's got to die, it's sunsets. So that's our middle era, the independent counsel era, 78 to 99. And from 99 through now, we've had special counsel. Which is not actually a law, it's a DOJ regulation written by a group of lawyers. And by the way, I interviewed one of the lawyers who was on that small panel. And another lawyer who was on that small panel was John Roberts, who's now the Chief Justice of the United States. So that's the regime that we've had for the last 26 years or so.

And also, just as a point of education here, how do these in, and I know it's different for the different eras you describe, but how do this independent or special prosecutors get appointed? Like was Congress able to say, Hey, I want to appoint an independent counsel or just the administration or the attorney general? Like, who gets to say now it's time for an independent counsel?

In the early days, it was mostly presidents would do it directly. Truman did it, Grant did it. Then when we got towards Watergate, it was more done through the attorney general. Under the independent counsel law, it with this complex sort of system where the attorney general had to recommend it to a panel of judges. Now for the last 26 years, it's just up to the AG. There's no judges involved, there's not supposed to be any president involved. It's just when the AG says, okay, we've got a conflict on our hands, we've got something that we need to essentially farm out to somebody else.

Why is it designed to give that person that prosecutor so much autonomy and power without maybe the traditional guideposts that exist in a regular prosecution?

'The tension inherent in any of these appointments is, on the one hand, we want someone from the outside. We want someone who can come in, not be accused of being under the president's thumb, not subject to being fired or re-confirmed, re-nominated by the president, someone who's going to have a degree of removal. On the other hand, we don't want people who are entirely unaccountable. We don't want a runaway prosecutor like Ken Starr, who essentially nobody can stop this guy. I mean, there were points where Ken Starr could have been limited and stop that lay out in the book that he was not. So that's the balance. We want an independent prosecutor, but we also want an accountable prosecutor. And that's why, by the way, I should say, all of these systems are flawed and messy. I mean, I say at the end of the book, this is the worst system. It's paraphrasing Winston Churchill about democracy itself. It is the worse system known to man, except for all the others. So there's no easy silver bullet solution, but that's the tension.

I mean, there was a famous Supreme Court case, right, around the authorization of the independent counsel law, and Antonin Scalia wrote a scathing dissent because I think of this, if I'm correct in my understanding, this accountability issue that he felt was totally lacking. How does that Scalia dissent, again, the court did rule to allow the independent counsel to go, still inform today the debate about the powers that this person gets.

'It's such an important dissent. This is 1988, somebody challenges the constitutionality of that independent counsel law. It's an 8-1 Supreme Court decision. Scalia is the only dissenter. Even Chief Justice Rehnquist, other conservatives, said it was fine. And Scalia writes this thing that is still to this day, especially with conservatives and Federalist Society folks called "The Golden Dissent," capital letters, and it has gained traction. In fact, when Judge Aileen Cannon threw out the Trump classified documents case, she leaned heavily on that. And essentially Scalia's point was, I may not, he says something like, we're creating an institutionalized wolf hanging on the flank of the elk, meaning.

Wow.

I mean, what a phrase, right? Basically, we're empowering somebody and saying, go after that guy right there, sic 'em. And that's dangerous. And that's a potential runaway abuse of prosecutorial power. And the thing is, the sort of the shame of it is we don't really know because that Judge Cannon case was clearly going to head up the appellate courts, probably to the Supreme Court, but Trump wins the election, everything gets dismissed. So it kind of, we kind of got left in limbo.

And you talk about now, it's totally in the purview of the attorney general to appoint a special counsel. You just described in our last block that the current attorney general seems to be positioning herself as a pure political promoter and defender of Donald Trump and nothing else. And if that is the case, then do we then anticipate that there would never be a moment in which somebody like Pam Bondi would ever determine that a special counsel is needed to investigate a potential conflict in this administration?

There's no way that Pam Bondi is going to make a traditional special counsel appointment. Like we saw under Merrick Garland and Joe Biden with the appointments of Robert Hur to investigate Joe Biden, right? Like we saw under Trump 1.

Or Jeff Sessions.

'In Trump 1: Mueller. That happened under Trump 1, right? There's no way we're going to see that. Now, the only possible use we may see a special counsel is to go after one of these enemies, but it seems like they'd rather do it- Remember, DOJ now has this made up weaponization working group with Ed Martin running it. So it seems that they just want to do it outside the books all together. One of the pitches I make in the book, though, at the end, especially, is whoever becomes president next is going to find that a lot of guardrails, protections, norms, traditions have been destroyed or knocked down during these four years. It's not just this. It's just the independent justice system. It's ethics rules. It's inspectors general. It's restraints on making private profits when you're president. Whoever comes next, it's going to be tempting to leave that stuff in shambles. What president wants inspectors-general? What president wants. You know, you can't own private businesses? But this institution here, special counsel, some sort of outside independent investigative mechanism and an independent justice department more broadly is so essential to accountability, to good government that it's sort of a plea to whoever comes next that this needs to be restored. And by the way, if you want an example of what happens when you don't have rules, first of all, look at Jim Comey in 2016. They did not appoint a special counsel when they should have. Comey makes it up as he goes along and completely works himself into a corner and now has been criticized by both parties roundly and deservedly, or look at what the Trump administration's doing right now. They're not using any, the special counsel rules do put limits on what you can do. Instead, they're just saying, heck with it. We're gonna pick out whatever we want and we'll have some weaponization working group or Lindsay Halligan will bring in some, you know, some political loyalists to do the case. So I think it's, you know the rules are imperfect, but they're certainly better than no rules.

So you leave this process of doing all the research for the book, reporting it, writing it. Am I hearing you correctly? You walk away a defender of the independent council statute or a special counsel system to be robust and in place?

'Yes, I walk away a defender of the broad notion that we need some sort of independent counsel special, whatever you want to name it, type system. I do recommend-.

'Have you seen one of the flawed models - is there a preferred one you have?

'So I propose one in the book. And I think, historically, it's about time. Because if you do the math on every 20 to 25 years, we sort of scrap the old one and develop the next evolution. So I do propose a system in the books. I won't give you all the nuances of it, but essentially the idea is to have a politically accountable position, nominated by the president, confirmed by the Senate, sort of like FBI directors supposed to be, serves a set period of term, not coterminous with the president five years, 10 years, whatever, with independent staff, independent sort of standing, protections from firing, but also political accountability because it has to come through the president and the Senate. Similar to sort of what we have with inspectors general right now, but with a bit more permanency and a permanent support staff. And a broader mission than just you, the wolf and the elk kind of thing. You're here more patrolling the grounds in general. So I do believe, look, it would be real easy. It would have been real easy for me to make the last chapter in this book. It's all screwed and let's throw up our hands and just talk about how terrible the system is. But then what? Like then what, are we gonna just, again, go back to ad-living-ness? So the system I propose, I acknowledge in the book, won't solve everything, but I think it's what we need given this moment in time. And I should say. Having, and I talked in this book to 35, 36, something like that, on record, first-hand participants, Watergate prosecutors, lawyers who represented Bill Clinton, Joe Biden, Donald Trump, defense lawyers, prosecutors, you name it, people who were prosecuted, White House officials. And I think I'm now in position to say, based on what I've seen, that what we've seen from Watergate through now, through up until Trump 2.0, what we're seeing now with Trump 2 .0 is fundamentally different. Nobody's been an angel. Everyone's had their down moments. Everyone has had their moments where they've undermined the system. What Trump is doing now, completely abolishing that wall of separation, is different in kind. Not just degree, but in kind from everything we've seen in modern history.

Wow. Elie Honig, thank you so much, as always, for your incredible insights and analysis, but also this great piece of work in your new book. So I urge everyone to take a look at it.

Thanks, David. Great to be with you.

That's it for this week's edition of the CNN Political Briefing. We'll be back with a new episode next Friday. Thanks so much for listening.