Summary
- James
Comey indicted on false statement and obstruction charges. - Charges
relate to 2020 Senate testimony about FBI leaks. - Comey
denies authorizing leaks to the media.
The indictment of Comey on two criminal charges last week in
Virginia marked a significant victory for Trump’s campaign of retaliation
against an old adversary whom he holds responsible for his political and legal
troubles.
It came after Trump made a stunning array of public
statements demanding Comey’s indictment, which provoked a flurry of criticism.
After pointing out that the case against Comey was weak, Trump forced US
attorney Erik Siebert in eastern Virginia to step down. He then replaced him
with White House adviser Lindsey Halligan, a longtime Trump defense attorney
with no prosecutorial background. As is customary, Halligan signed the charges
in a scant two-page form as the sole prosecutor.
Trump’s aggressive pressure on US Attorney General Pam Bondi
on Truth Social to act quickly due to a five-year statute of limitations
deadline was another aspect of his campaign to charge Comey.
Comey was charged in the final indictment of lying to
Congress in 2020 over a leak pertaining to the FBI’s investigation into
Russia’s attempts to sway the 2016 elections and obstruct Congress.
Trump boasted on Truth Social that Comey’s charges brought
about “JUSTICE IN AMERICA!” However, academics and former prosecutors
warn that his harsh pressure on the Justice Department to get the charges could
backfire by tainting the investigation. Critics also emphasize that Trump’s
meddling in prosecutorial affairs is a risky departure from the justice
department’s and the White House’s decades-long separation in prosecutorial
choices.
“Since the Watergate era, communications between the White
House and the DoJ have been strictly limited to avoid even the appearance of
politically motivated prosecutions,”
said former US attorney for eastern
Michigan prosecutor Barbara McQuade, who now teaches law at the University of
Michigan.
“Trump’s replacement of a prosecutor who reportedly declined
to charge Comey with his own White House aide destroys any pretense of DoJ
independence. Under Trump, the justice department is now just one more
political tool.”
Comey, who has denied the charges, posted a video on
Instagram, saying:
“My heart is broken for the Department of Justice, but I
have great confidence in the federal judicial system, and I’m innocent. So,
let’s have a trial and keep the faith.”
The zealousness of Trump’s revenge campaign against Comey
and other foes including New York attorney general Letitia James and California
Democratic senator Adam Schiff was revealed in a series of Trump’s Truth Social
posts directed at attorney general Pam Bondi.
The day after Siebert’s ouster, Trump raged at Bondi that
the failure to bring criminal charges against top foes including Comey, James
and Schiff was “killing our reputation and credibility” and that “we can’t
delay any longer”.
Trump, in his message addressed to “Pam”, stressed what he
perceived as the stakes:
“They impeached me twice, and indicted me (5 times!),
OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”
Further, Trump belittled Siebert, who had resigned the day
before after Trump said “I want him out” for claiming “that we had no case”.
But Trump boasted that “there is a GREAT CASE” to charge Comey.
Trump’s laser-like drive to punish Comey – despite serious
internal doubts about the case – reveals Trump’s disregard for judicial
independence, say former prosecutors and scholars.
“There is no longer any attempt to conceal the complete
takeover of the DoJ and the FBI by the White House,”
ex-DoJ inspector general
Michael Bromwich told the Guardian.
“Prosecutors are taught to do the right thing, in the right
way, for the right reasons. That credo has been replaced by the command to do
what the White House says, whether or not there are any facts or law to support
the decision to prosecute. The Comey indictment shows this new credo: do the
wrong thing in the wrong way for the wrong reasons. It is chilling.”
Bromwich added: “Imagine the pall that the decision to
replace Erik Seibert with yet another Trump personal defense lawyer with no
criminal law experience casts over the eastern district of Virginia US
attorney’s office. The widely admired and respected head of the office was
replaced because he took his oath seriously and refused to bring charges based
on little or no evidence.”
The weakness of the case was underscored, say experts, when
only 14 of 23 grand jurors impaneled to hear the charges voted to convict, and
Halligan was the lone prosecutor to sign the brief indictment.
Some prominent lawyers who worked on Watergate prosecutions
are also appalled at Trump’s tactics to go after Comey.
“As the resignation of the former US attorney illustrates,
the president’s insistence that the DoJ find some basis for prosecuting Comey
conflicts with the department’s own principles of federal prosecution, which
expressly prohibits federal prosecutors from taking political motives into
account in determining whether criminal charges are appropriate,”
Philip
Lacovara, who was counsel for the Watergate special prosecutor, told the
Guardian.
“Trump’s blatant misuse of the justice department and
manipulation of the grand jury offends basic principles of constitutional law.
The president’s primary constitutional responsibility is to see to it that the
laws are ‘faithfully executed’. The naked intent to use the criminal process
for the purpose of ‘punishing’ a perceived personal ‘enemy’ dishonors that
obligation.”
Scholars, too, believe Trump’s brass-knuckle tactics may
backfire. They caution there could be some major snags in obtaining convictions
due to Trump’s public pressures to bring charges, moves that defense lawyers
can use to persuade grand juries and courts that the charges are tainted.
“By repeatedly and publicly declaring Comey, James and
Schiff ‘guilty as hell’, Trump has made a fair trial for them impossible while
he’s president and maybe for ever,”
New York University law professor Stephen
Gillers told the Guardian.
“Jurors must make their decisions based only on the evidence
admitted in court. Trump’s public accusations of guilt are not admissible in
evidence, but jurors will be aware of them and could be improperly influenced.
A fair trial is impossible when the president has already declared the
defendant guilty.”
It should come as no surprise that Trump celebrated Comey’s
indictment on Truth Social by posting, “He has been so bad for our
Country, for so long.”
Following Comey’s charges, Trump indicated that he
anticipated and expected more indictments against longtime enemies whom he has
long held responsible for his legal and political problems.
Trump has made it apparent in his Truth Social posts that he
is considering prosecuting James and Schiff as retaliation.
It appears that Trump’s anger with the New York attorney
general, whom the justice department has been looking into for suspected
mortgage fraud that James has denied, has a lot to do with a civil fraud case
her agency won against Trump’s real estate company last year, which resulted in
a $500 million fine.
Similar to this, Trump has been hostile toward Schiff since
the senator was a member of the House and served as manager during Trump’s
initial impeachment. The US attorney’s office in Maryland is also investigating
Schiff for alleged mortgage fraud, which he has denied.
Schiff said that “there’s no hiding the political
retaliation and weaponization” in response to Trump’s Truth Social
statements on social media the weekend before Comey’s indictment. Everything is
in the open.
Trump’s resentment of Comey has its origins in his 2016
campaign and first term as president. In 2016, Comey was in charge of the FBI
when it started looking into any connections between his campaign and Russian
attempts to help Trump defeat Hillary Clinton in the election.
Even though a bipartisan Senate panel led by Republicans
found in 2020 that the Kremlin launched an effort to sway the 2016 election in
order to support Trump, Comey was fired by Trump in 2017 and continues to lash
out at investigations into what he called the “Russia hoax.”
According to a 1,000-page Senate panel assessment, Trump’s campaign aides posed
a “severe” counterintelligence threat in 2016 due to their extensive
network of connections with Russians, including Kremlin officials and
intelligence agents.
An ex-federal prosecutor who currently teaches law at George
Washington University, Randall Eliason, told the Guardian that Trump’s meddling
in the investigations “is extremely dangerous and frightening.”
Regardless of the merits of the cases, Trump is blatantly insisting that
prosecutors file them in order to punish his political rivals.
“The respected, career US attorney in Virginia apparently
did his job by refusing to bring unfounded cases. Halligan’s main qualification
presumably is her willingness to do whatever Trump wants.”
Eliason said in a blog post a few days prior to Comey’s
indictment that “the defense will move to dismiss the charges based on
legal doctrines such as vindictive or selective prosecution, and Trump’s own
social media posts will be exhibit 1” if Comey or James were indicted by
Virginia prosecutors.
It is understandable why Democrats are also raising concerns
about Trump’s unusual role in the Comey accusations and are requesting details
from the Trump administration and the Justice Department on Siebert’s firing
and Halligan’s replacement.
“It’s perfectly clear that Trump is trying to turn the
modern rule of law into a system of vengeance, retribution and blood feud,”
Maryland congressman Jamie Raskin, who taught constitutional law for over two
decades, told the Guardian.
“This is a huge break from centuries of evolution
in our criminal justice system and constitutional structures.”
What legal standards determine selective prosecution claims?
The defendant has to establish that they have been
prosecuted while other similarly situated defendants, who committed the same
act, were not prosecuted. The defendant must show that the treatment is
different than other similarly situated individuals.
The defendant must show that the prosecution was driven by
inappropriate considerations, such as race, religion, political belief, or
other equally improper considerations. This will require some evidence that the
prosecution was intentionally discriminatory by design.
Courts allow discovery in favor of such claims only after
the defendant has shown some initial evidence of both a discriminatory effect
and a discriminatory intent. In those cases, the burden of proof rests with the
defendant showing that there was a clear preponderance of evidence. If the
defendant is successful, the normal remedy is a dismissal of charges.
