Donald Trump’s public and private push to have ex-FBI director James Comey indicted on criminal charges is a strong sign of the US slipping into authoritarianism, but it could also taint the case’s chances of success because it is evidence of a selective and biased political prosecution, ex-prosecutors and scholars say.
Trump’s retribution drive against an old foe he blames for legal and political problems notched a big win when Comey was indicted last week on two criminal counts in Virginia.
It followed a remarkable series of public moves by Trump seeking Comey’s indictment that sparked a firestorm of criticism. Trump pressured the US attorney in eastern Virginia Erik Siebert to resign after he had indicated the case against Comey was weak, and then tapped White House adviser Lindsey Halligan, a former Trump defense lawyer who lacked prosecutorial experience to replace him. In an usual move, Halligan was the only prosecutor who signed the charges in a meager two-page document.
Trump’s push for Comey’s indictment also involved his tough prodding of Pam Bondi, the US attorney general, on Truth Social to move fast given a looming five-year statute of limitations deadline.
The eventual indictment charged Comey for allegedly lying to Congress in 2020 about a leak related to the FBI investigatino into Russia’s efforts to influence the 2016 elections and obstruction of Congress.
Although Trump gloated on Truth Social that the charges against Comey achieved “JUSTICE IN AMERICA!’, scholars and ex-prosecutors say his heavy handed-pressure tactics on the justice department to secure the charges could backfire by tainting the case. Further, critics stress that Trump’s interference in prosecutorial matters represents a dangerous break with decades of separating the White House from the justice department in prosecutorial decisions.
“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.”
McQuade also cautioned that the justice department flouted basic prosecutorial rules on the Comey case.
“The DoJ’s principles of federal prosecution prohibit prosecutors from considering partisan politics in charging decisions,” adding that Trump in going after Comey effectively acted as “investigator, prosecutor, and jury”.
Not surprisingly, Trump used Truth Social to celebrate the news of Comey’s indictment by writing: “He has been so bad for our Country, for so long.”
Trump signaled after Comey was charged that he expected and hoped there would be more indictments against old foes who he has long blamed for political and legal woes.
Leaving the White House the day after Comey’s indictment, Trump told reporters: “Frankly, I hope there are others, because you can’t let this happen to a country.”
James and Schiff are clearly on Trump’s revenge radar for prosecutions as he indicated in his Truth Social posts.
Trump’s ire at the New York attorney general, who the justice department has been investigating over alleged mortgage fraud, which James has denied, seems tied heavily to a successful civil fraud case her office brought against Trump’s real estate empire last year with a $500m penalty.
Although the hefty penalty was overturned last month, Trump and his two eldest sons are still barred from holding leadership posts with the real-estate giant for a few years.
Similarly, Trump’s animosity towards Schiff dates back to when the senator served in the House and acted as manager during Trump’s first impeachment. Schiff is also under scrutiny by the office of the US attorney in Maryland for alleged mortgage fraud, which he has denied.
On social media the weekend before Comey’s indictment, Schiff responded to Trump’s Truth Social posts that “there’s no hiding the political retaliation and weaponization. It’s all out in the open.”
The roots of Trump’s animus towards Comey go back to his first presidency and his 2016 campaign. Comey led the FBI in 2016 when it began investigations into possible ties between his campaign and Russia’s efforts to boost him in the election over Hillary Clinton.
Comey was fired in 2017 by Trump who still fumes at investigations into what he called the “Russia hoax”, even though a bipartisan Senate panel led by Republicans concluded in 2020 that the Kremlin mounted a drive to influence the 2016 election with an eye to boosting Trump. A 1,000-page Senate panel report also concluded that Trump’s campaign advisers had a web of contacts with Russians including some Kremlin officials and intelligence operatives in 2016 that posed a “grave” counterintelligence threat.
Ex-prosecutors say Trump’s heavy-handed pressure tactics to have his enemies charged with crimes recalls the style of authoritarian rulers and could backfire when the case goes to trial.
Trump’s interference in the cases “is extremely dangerous and frightening”, Randall Eliason, an ex-federal prosecutor who now teaches law at George Washington University, told the Guardian. “Trump is brazenly demanding that prosecutors bring cases to punish his political opponents, whether or not the cases have any merit. That’s the act of an authoritarian, not a US president who respects the rule of law.
“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.”
In a blogpost days before Comey’s indictment, Eliason predicted that if Comey or James were charged by Virginia prosecutors, “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”.
Little wonder that Democrats, too, are sounding alarms about Trump’s unprecedented involvement in the Comey charges and pressing the justice department and the Trump administration for information about Siebert’s ouster and his replacement by Halligan.
“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.”
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