“It’s good to be the King,” says Louis XVI in Mel Brooks’ 1981 film, History of the World, Part 1. The King in that movie is a complete autocrat, at one point having peasants launched through the air so that he can shoot them as they fly by. Of course, under Louis XVI’s reign, the monarchy was abolished, and Louis XVI’s head was cut off. It turned out that it was not always good to be the King. What does this have to do with James Comey? Everything.
In the United States, since its founding, the authority of the Executive has been limited by the Constitution and the laws enacted by Congress under that Constitution. The President is not permitted to do whatever he wants. The Constitution thus far has been trampled under foot by Trump to the cheers of many who called Obama or Biden tyrants. But the Constitution is not yet dead, and, in time, many will come to understand the importance of the document that serves as the very essence of this country. It may not be perfect, but it should be preferable to the arbitrary dictates of one person who gets all his information from Fox News.
But now, Trump has moved from the arbitrary imposition and suspension of tariffs and threats to take over Greenland and Canada, to the indictment of political enemies. His first target is James Comey, the former Director of the FBI, former U.S. Attorney for the Southern District of New York, the former Head of the Criminal Division at the Department of Justice (DOJ), etc.; in short, someone who has dedicated himself to the DOJ and the enforcement of the nation’s laws. What is he accused of doing? Lying to Congress about a leak to the New York Times. How strong is the case against him? Very weak. Perhaps even non-existent.
If the case against him is so weak, then why is he being indicted? That is the most interesting question, and it goes to the heart of what we are as a democracy. Comey is a political opponent of the President. Trump fired him as the Director of the FBI because Comey would not pledge allegiance to him and would not curtail an investigation into Russia’s interference in the U.S. elections. A subsequent independent investigation by a Special Counsel concluded that the Russians did interfere with the U.S. election and that multiple high-level members of the Trump Administration did interfere with the special counsel’s investigation.
Trump blames this blemish on his otherwise ineffective administration on Comey. During his first administration, DOJ appointed John Durham as a special counsel to investigate the origins of the FBI’s Russian interference investigation. Durham ended up prosecuting three individuals, Kevin Clinesmith, a low-level FBI attorney who received a probationary sentence and Michael Sussman and Igor Danchenko, both of whom were found “not guilty”.[1] Significantly, despite a lengthy investigation, no charges were filed against James Comey.
[1] There is an interesting distinction between President Trump’s words often repeated in a Trump-friendly ecosystem and the fact-based evidence presented in a courtroom. Trump routinely refers to the FBI investigation as the “Russia Hoax” and continuously alleges a “deep state” conspiracy to ruin his Presidency. In fact, no conspiracy has ever been proven to exist in a court of law. I am certain that if there had been evidence of a conspiracy, Durham would have found it.
One might have thought that would be the end of it, but such a conclusion would be wrong. On May 9, 2025, Erik Siebert, a career prosecutor with DOJ, was appointed U.S. Attorney for the Eastern District of Virginia. Press reports indicate that he viewed the case against New York Attorney General Letitia James as being extremely weak[2] and apparently failed to seek Ms. James’ Indictment. On September 19th, Seibert resigned as U.S. Attorney; however, Trump said that he fired Siebert before he could resign.
[2] Ms. James filed a civil suit against the Trump Organization which resulted in a finding of fraud and the imposition of non-monetary penalties and a fine of $500 million. An intermediate appellate court in New York affirmed the finding of fraud but voided the fine as excessive.
When Siebert left the office, Lindsey Halligan was appointed interim U.S. Attorney. Although she has no criminal experience, she sought the indictment of Comey four days later. Trump called for Comey’s indictment on September 20th, the day before Halligan’s appointment. It would seem as though Halligan had no choice in pursuing the Indictment. She also did not have any support from the professional staff at the Eastern District of Virginia.
Understanding How Grand Jury’s Work.
What does the indictment of Comey mean? For that matter, what is an indictment?
A grand jury indictment is required for felony charges to be filed against anyone in the United States under the Fifth Amendment to the Constitution; however, the right to a grand jury indictment has never been considered much of a right. Grand juries are composed of between sixteen and twenty-three randomly selected members of the community. Their job is to determine, by majority vote, if there is “probable cause” to support one or more criminal charges. They hear an abbreviated version of the facts from the prosecutor. Neither the defendant nor defense counsel are present. After the prosecutor calls the witnesses, the prosecutor deems appropriate, the grand jurors vote on whether to indict or not.
It has often been said that a prosecutor can indict a ham sandwich, a statement that contains some hyperbole but nevertheless hints to the extraordinarily low standard of evidence required. However, in recent weeks, grand jurors in the District of Columbia have been routinely rejecting indictments sought by Trump’s DOJ. In every case with which I am personally familiar, grand juries have followed DOJ’s recommendations in Indicting defendants.[3]
[3] At the state level, prosecutors will sometimes present a weak case to a grand jury and then use a finding of “no true bill” to say the grand jury decided not to indict. This provides political cover for state level prosecutors. I have never seen federal prosecutors do this, however.
It is also important to understand that the indictment of an individual is the beginning of the legal process. All the rights a criminal defendant in the United States enjoys come after a grand jury has returned an Indictment. The Indictment is not evidence of guilt. It merely identifies the charges brought against a criminal defendant.
There are ways to challenge an Indictment, for any one of several reasons. But when the prosecution is politically motivated, an allegation of vindictive or elective prosecution may be in order.
Vindictive or Selective Prosecution.
Vindictive or selective prosecution (hereinafter “vindictive prosecution”) occurs when a prosecution is motivated by personal animus. Now, not every personal conflict between a prosecutor and a defendant is going to result in a motion to dismiss for vindictive prosecution. In the ten years or so I served as a prosecutor at the state and federal level, there were defendants I absolutely disliked.[4] However, a prosecutor’s dislike of a criminal defendant is not often going to give rise to vindictive prosecution. To be successful in such a motion, there are two things the defendant must prove:
- Discriminatory effect. Discriminatory effect means that there were other individuals who engaged in the same or similar conduct who were not prosecuted; and,
- Discriminatory intent. Discriminatory intent means that the prosecutor was motivated by a discriminatory purpose like political bias.[5]
[4] I prosected murderers, rapists, and child molesters in addition to other felons. Many of these people were unsavory.
[5] United States v. Armstrong, 517 U.S. 456 (1996).
So, is a politically motivated prosecution always a vindictive prosecution? The short answer is “no”. If one’s political opponent is arrested for smuggling fentanyl into the country, there is almost no chance a vindictive prosecution claim would be successful. Fentanyl charges are always pursued whenever the drugs are found. If the crime is a real crime, and if the evidence is strong, a vindictive prosecution claim is almost always going to fail.
What about the charge against Comey—lying to Congress—is that a crime that is often prosecuted? Statistically speaking, no. Lying is frequently difficult to prove, and a lie in and of itself is rarely prosecuted. Several Trump-related individuals have pled guilty to lying to Congress. Michael Cohen pled guilty to the charge, but he faced other charges as well.[6] Other members of the Trump family and administration may have lied to Congress, but none have been charged.
[6] An interesting fact that may come up in the motion in Comey’s case is the fact that Cohen was sentenced to prison for conspiring with Trump. In fact, the crimes that Cohen committed primarily benefited Donald Trump. This would seem to add to the motive evidence concerning a vindictive prosecution and show that Trump himself engaged in conduct that was more reprehensible than anything Cohen did or said
How does Comey’s “lie” compare to other lies to Congress? It is alleged in the Indictment that when Comey said he did not authorize any leaks to the press, that statement was a lie because he had a friend of his anonymously leak information to the New York Times. This allegation hints to some difficulties the government will have in proving its case. First, the leak to the New York Times was apparently “anonymous”, meaning that there will be no one from the Times identifying a leaker. Even if the Times knew the identity of the leaker, it has substantial privileges that it can use to shield their identity.
So that would apparently leave the government with only the individual who leaked the information to the Times, but is Comey’s “friend” going to want to incriminate Comey? Basing any case on a single witness is always difficult, even if the witness is friendly, and in this case, the witness is likely not friendly. Even if the government is successful in proving that one of Comey’s friends leaked information to the Times, how does it prove that the information the Times published came from that leak? Media outlets rarely publish information from a single source, especially when the source is itself anonymous. If the Times had other sources, something that seems likely, proving the charge against Comey would become even more difficult.
Vindictive prosecution motions are rarely filed by defendants and almost never granted. The only vindictive prosecution I ever litigated occurred when I was the First Assistant District Attorney in a county in Pennsylvania. The case was a narcotics distribution case, and in an effort to prove the defendant’s innocence, the defense counsel called the district attorney as a witness to establish vindictive prosecution. The district attorney admitted to disliking drug dealers, but that evidence was insufficient to prove vindictive prosecution. The defendant had made a series of controlled buys from undercover agents of the Pennsylvania Attorney General, and there was no indication that the district attorney had any involvement in, or knowledge of, those buys. When the case was over, the defendant was convicted and sentenced to a lengthy prison sentence.
James Comey’s case represents that mirror opposite of the case I tried, and I suspect that at the end of the day, the defense will be able to prove vindictive prosecution.
The opposition to the Indictment from the career professionals who prosecute criminals for a living is also telling. When the attorney who seeks the Indictment is new to DOJ and has never prosecuted a criminal case before, the case is getting off to a bad start.
Conclusion.
I have tremendous confidence in the system of justice our forefathers have established over the past couple of centuries. It is not a perfect system, and during the course of my career, I have seen the protections afforded by the Constitution slowly eroded, but at the end of the day, guilt or innocence is decided by a jury. That jury is made of randomly selected individuals from the federal district where the trial is to be heard. In my experience, jurors try hard to follow the judge’s instructions and to do the right thing. I am confident they will do so in Comey’s case.
The greater problem is the damage that people like Trump, Attorney General Pam Bondi and Interim U.S. Attorney Linsey Harrigan can do to the credibility of the U.S. justice system. Decisions to indict should be made by thoughtful professional prosecutors based upon the strength of the evidence at their disposal, not by social media posts from someone personally offended by the potential defendant.
