To the extent one took pride in serving as a prosecutor, it was grounded in the integrity of the duty. With neither fear nor favor, a prosecutor followed the evidence and, when the evidence warranted, prosecuted crimes. It didn’t make a prosecutor infallible, or even right, but it did allow her to perform her duty with integrity. As Justice Jackson admonished, “do justice.” And justice was what United States Attorneys and their assistants could take comfort in doing.
But the two-count indictment against Mr. Comey is the most far-reaching and public example of the second Trump administration’s efforts to co-opt the criminal justice system. And while Mr. Trump’s allies see it as an overdue and legitimate effort to hold Mr. Comey accountable for what they consider an abuse of power, it could well go down as a moment when a fundamental democratic norm — that justice is dispensed without regard to political or personal agendas — was cast aside in a dangerous way.
The basis for the charge is Comey’s testimony to the Senate.
For a charging document as consequential as an indictment of a former F.B.I. director, the filing was not particularly revealing. It asserts that Mr. Comey falsely claimed during the hearing before the Senate Judiciary Committee that he had not authorized someone else at the F.B.I. to be an anonymous source in news reports regarding an investigation into “Person 1,” which appears to be a reference to Hillary Clinton.
“That statement was false,” the indictment charges, because Mr. Comey “had in fact authorized PERSON 3 to serve as an anonymous source in news reports regarding an F.B.I. investigation concerning PERSON 1.”
McCabe testified that Comey told him in private that Comey authorized the leak. Comey vehemently denied it. The DoJ inspector general, Mike Horowitz, investigated this discrepancy at the time and concluded that the evidence was overwhelming that Comey was telling the truth. Trump’s appointed United States Attorney for the Eastern District of Virginia concluded that the evidence was insufficient to prosecute Comey.
That doesn’t mean he couldn’t get an indictment, given that only the prosecution presents evidence to the Grand Jury and then instructs the Grand Jury as to the law, but under DoJ rules and norms, no prosecution is commenced when the prosecution lacks a good faith belief that its evidence is sufficient to obtain a conviction by proving guilt beyond a reasonable doubt.
Then Trump demanded his hated nemesis, Jim Comey, be indicted and, when Erik Siebert refused, replaced him with the very loyal Lindsey Halligan, who had been Trump’s private defense attorney and had no prosecutorial experience whatsoever. Halligan did it. Trump was pleased.
JUSTICE IN AMERICA!
And just like that, the integrity of the United States Department of Justice was sold to Trump to be used as his weapon of retribution against his enemy.
To the uninitiated, this may seem to be fair given that Trump was targeted as a defendant by New York County District Attorney Alvin Bragg, who obtained a conviction against him, and New York Attorney General Letitia James, who obtained a civil judgment against Trump for inflating the value of his properties, although the penalty imposed by the court was thrown out as excessive. Neither of these cases, however, involved the Department of Justice or was pursued by President Biden or his administration against Trump, despite baseless claims to the contrary.
And then there are the two indictments from independent counsel Jack Smith for Trump’s refusal to return and lies about possessing secret documents and Trump’s instigation of the January 6 insurrection. These indictment were brought not by the DoJ, but independent counsel, and were based on conduct that unquestionably occurred. There is nothing comparable about them and what Trump is doing to Comey now to anyone with even a passing knowledge of the law and facts.
The Department of Justice wields the power of prosecution against people accused of violating the laws of the United States. It was not a tool of the president to exact revenge against his enemies, and it was certainly not a weapon to be openly and blatantly used for personal retribution. Note the past tense. Now it is, and now the assistants in the offices of United States Attorneys nationwide can no longer claim to perform their duty without fear or favor. They are now political partisans, openly and notoriously, and nothing more. By indicting Jim Comey, the DoJ has crossed the Rubicon. Any Assistant United States Attorney who chooses to remain in the office has sold his or her soul to Trump.
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I believe there is a strong probability that this is going to figuratively blow up in the DOJ’s collective face. Like the saying goes, “hoisted on their own petard.” There is a precedent. A lot of the same kind of political prosecutions of the previous four years had the same kind of results. That is a big reason why Our Augustus, (Hail Caesar!), was re-elected. It doesn’t seem like anyone learns. It seems likely that the back blast of all this will be to make Director Comey a martyr to rally around. Honestly, I thought his statement last night was powerful. Isn’t doing the same thing over and over again expecting a different result the working definition of insanity? The nation deserves better than this.
Too bad Comey didn’t get charged in DC as Pirro likely would have failed to get indictment.
One detail that I’m not clear on, was Comey caught on camera accepting $50K in a brown paper bag?
I’m not sure how much pride of integrity there ever was in DOJ. Over the years, they’ve stretched legal theories to nail political targets more than once. The difference with this is it didn’t use to be personally directed by the president (as far as we know). So this appears to be a further extension of abusive practices. We’ll see in a few years if it goes away or becomes the new normal. Maybe the staff who pursue Comey today will be the defendants in 2029. Courts and juries will still decide the rap, if not the ride.
Regarding AUSAs WSJ reported that only Halligan’s signature was on the charging document. Perhaps some people are refusing to play ball and rolling the dice on being fired vs resigning (or perhaps frantically looking for new jobs in the interim).