Prosecutions Have Never Been This Vindictive—or Meritless

Trump threatens the rule of law like it's his job

Evidence of animus is so stark—and the absence of evidence of guilt so glaring—in the prosecutions of former FBI director James Comey, Jr. and New York AG Letitia James that if these cases do not get tossed out as vindictive prosecutions, then no case will be barred on this basis pursuant to the 14^th Amendment’s Due Process Clause. Allowing such bogus indictments to proceed would permit this or any subsequent president to put his enemies through the ordeal of criminal prosecution and the risk of conviction.

Comey’s indictment alleges he lied under oath to Congress in 2020 when he refused to recant 2017 congressional testimony that he never authorized FBI personnel to leak. However, the alleged misstatement under oath (“I stand by the testimony… I gave in May of 2017”) is literally true. Comey did not change his mind. Moreover, Daniel Richman, the alleged leaker, denies Comey ever instructed him to leak. If ever there were a case in which conviction beyond a reasonable doubt was impossible, this is it.

Moreover, the prosecution’s vindictiveness (usually so difficult to prove) is, in this case, blatant, public, and undeniable. Trump—over months and years—expressed his desire to go after the former FBI director. Just days before Comey’s indictment, Trump messaged his attorney general: “We can’t delay any longer, it’s killing our reputation and credibility.”

Over 100 former Department of Justice prosecutors and high-ranking officials (including several who later served as federal judges) assert in an extraordinarily effective amicus brief:

In this case, the President called for the prosecution of specific individuals, installed a new United States Attorney after the prior United States Attorney apparently declined to pursue those charges, and contemporaneously messaged the Attorney General via social media to effectively direct the indictment of the desired cases. That situation is so unusual that there is no precedent directly addressing it. … [T]his is the extraordinarily “rare case” where there is direct, objective evidence of “actual vindictiveness.”

The amici make a powerful argument that the Comey indictment violates not only the DOJ’s internal guidelines but also prosecutors’ professional ethics and the Due Process Clause. Donald Trump personally expressed his animus against Comey multiple times. Furthermore, but for his animus and last-minute appointment of unqualified flunky Lindsey Halligan as U.S. attorney in the Eastern District, the case would never have been filed.

The amici remind the court that Halligan “was appointed just days before she personally presented this indictment to the grand jury (itself highly unusual for a U.S. Attorney in this District), and who of course serves at the President’s pleasure.” Even if she wanted to, Halligan lacks the experience and time properly to assess the merits.

It cannot be constitutional, the amici argue, for a president (who is constitutionally obligated to “take Care that the Laws be faithfully executed”) to use the criminal justice system as his weapon of choice in pursuing revenge against enemies. (That is precisely what Trump vowed to do in the campaign). Dictatorships do that, not democracies.

The amici closed with a sobering argument in favor of outright dismissal of the Comey indictment, given that Trump brought other cases (e.g., Tish James) and threatens to pursue more enemies (e.g. California Democratic Senator Adam Schiff):

If this kind of vindictively targeted indictment is allowed to stand, it would send a dangerous signal, short-circuiting whatever internal guardrails remain within the Department, and emboldening the government to target others in exactly the way that then-Attorney General [Robert] Jackson feared: for “being personally obnoxious to or in the way of” the Executive Branch…. That would carry obvious chilling effects on private citizens’ speech and conduct, as well as their basic sense of freedom and security. And it would risk a grave erosion of public confidence in the Department of Justice that is essential for the Department to be able to conduct its vital work.

In other words, if we have any real system of justice, the Comey case cannot stand.

Meanwhile, we learned that the Tish James’ indictment also followed an irregular and vindictive path. James was charged with “mortgage fraud” on ludicrously weak grounds. The alleged “fraud” amounted to $800 per year, a puny amount for a U.S. attorney to consider, stemming from her identifying the purchase as a “secondary home,” not an investment property. The absence of evidence of guilt—indeed the replete evidence of innocence—coupled with Trump’s expressed animus toward the New York attorney general (who incurred his wrath by successfully suing him for inflating real estate values and by shutting down his fraudulent charity) and reliance on his stooge Halligan demonstrates that the case is as pernicious as Comey’s.

ABC reported:

Prosecutors detailed the findings to the previous U.S. attorney, Erik Siebert, in a month, according to sources familiar with its contents. Siebert was ousted by President Donald Trump last month after refusing to seek charges against James amid what critics call Trump’s campaign of retribution against his perceived political foes.

“I want him out,” Trump said the day before Siebert was ousted. . . . Of James, Trump said, “It looks to me like she is very guilty of something, but I really don’t know.” … Last week Halligan abruptly fired the author of the memo, career prosecutor Elizabeth Yusi, in part due to her resistance to bringing the case against James, sources said.

What’s more, prosecutors uncovered evidence exonerating James. She purchased a modest house in Norfolk, Virginia, for her great-niece and promptly allowed her relatives “to begin living in the house rent-free.” James’ niece told prosecutors that “she had never signed a lease, had never paid rent for the home, and that James had often sent her money to cover some of the expenses.”

Witnesses’ conflicting accounts, James’ time spent at the house (not indicative of a rental), and mortgage rules’ vagueness mean proving criminal intent beyond a reasonable doubt would be virtually impossible. Sure, Halligan found “something” to indict as Trump ordered, but only a political stooge would bring a case this meritless.

In sum, Trump’s inability to keep his trap shut about his revengeful prosecutions against Comey and James provides defense counsel with ample proof that both cases are vindictive (not to mention groundless). Americans should care deeply about these revenge prosecutions. If Trump can deploy the criminal justice system against them, no one who crosses (or has ever crossed) the president would be safe from prosecution. Who would want to live in such a country?