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.