WASHINGTON (AP) — For a Justice Department facing intense White House pressure to investigate perceived presidential enemies, indicting former FBI Director James Comey was the easy part.
Building a case that can sway a jury beyond a reasonable doubt is a significantly tougher task, but like in other cases of investigations of President Donald Trump's critics, it increasingly seems to be almost beside the point.
As the administration aims to comply with Trump’s ordered prosecutions, officials have signaled
that making life uncomfortable for targets of the retribution — including through reputational harm, legal fees and lingering uncertainty — is a desired goal in its own right, separate and apart from the ability to secure a guilty verdict. It's a sharp break for a department that for decades, under bipartisan leadership, has been hesitant to bring cases unless it believes it can win, securing convictions in the overwhelming majority of prosecutions it initiates.
Caution about the prospects of a conviction can now be grounds for removal, at least when it comes to cases regarding the subjects of Trump's ire. The prosecutor whose offices had been overseeing investigations into Comey and New York Attorney General Letitia James learned that lesson last week and resigned as the White House pushed for charges.
“I’m sure achieving a conviction would be the icing on the cake, but it is using the criminal justice process itself as an instrument of punishment without regard for guilt or innocence or the likelihood of a conviction,” said Bruce Green, a Fordham University law school professor and former federal prosecutor who focuses on legal ethics.
“The tradition for decades has been that federal prosecutors don’t bring cases unless they think they can win them, unless they think the person they’re prosecuting is guilty,” he added. “And that apparently has gone out the window now.”
That ethos will be put to test not only by the Comey case but also by separate mortgage fraud investigations into James and Sen. Adam Schiff of California, both Democrats whom Trump has publicly called to be prosecuted. Lawyers for James and Schiff have called the investigations meritless and no charges have been filed even as Trump has directly appealed to Attorney General Pam Bondi for action.
Trump and Justice Department officials deny the investigations are part of a broader retribution campaign. Deputy Attorney General Todd Blanche pushed back against critics Friday, saying in a Fox News interview that the case was “not just pulled out of thin air,” and that Comey stands accused of “very serious crimes.”
Trump has repeatedly said the two federal indictments filed against him between his terms as president — one accusing him of conspiring to overturn the 2020 election, the other of hoarding classified documents — prove that he was the victim of a weaponized Justice Department. But administration officials have also been clear about Trump’s desire for accountability against those he believes wronged him, including officials like Comey involved in the Russia election interference case in his first term.
"They did it with me for four years, they went after me,” Trump said Friday. He later added, “It’s about justice, it’s not revenge.”
White House spokeswoman Karoline Leavitt told reporters Monday that Trump was “rightfully frustrated” that more charges had not been brought. In May, Ed Martin, who leads the administration's “weaponization working group,” pledged to call out “really bad actors” even when they can't be prosecuted and even though longstanding Justice Department policies dictate against public disparagement of the uncharged.
“If they can be charged,” he said, “we will charge them. If they cannot be charged, we will name them. In a culture that respects shame, there should be people who are shamed.”
The case against Comey was hardly a sure thing, winding through an unconventional path on the way to indictment in the Eastern District of Virginia.
The indictment was secured by a brand new U.S. Attorney, Lindsey Halligan, a White House aide and former Trump defense lawyer. Despite a lack of prior experience as a federal prosecutor, Halligan was abruptly installed by Trump last weekend after the veteran attorney who held the job was effectively pushed out under pressure.
Racing to beat a five-year statute of limitations set to expire Tuesday, she pressed ahead even though prosecutors in the office had expressed reservations about the strength of the case. Ultimately, the grand jury indicted Comey on two counts but rejected a third sought by prosecutors. The session lasted until the evening, late enough for the magistrate judge to take note of the time.
The indictment accuses Comey of making a false statement during congressional testimony in 2020, but the allegations are so sparse that it's difficult to assess the strength of evidence prosecutors possess. Comey declared himself innocent in a video he posted online and said he was eager for trial.
The Justice Department's prospects for success are murky at best. Halligan was the only one who signed the indictment so it's unclear who will try the case for the government. Comey's legal team includes the former U.S. Attorney in Chicago, Patrick Fitzgerald, a Justice Department veteran perhaps best known for investigating the leak of CIA agent Valerie Plame's identity during the Iraq war.
Trump has loudly touted the indictment with series of social media posts over the last day that say “JUSTICE IN AMERICA” and that call Comey a “A DIRTY COP” and assert that he is guilty. But he has also appeared to try to manage his supporters' expectations by noting that the judge assigned to the case was appointed by Democratic President Joe Biden.
The fact that Trump is making posts expressing profound personal satisfaction while a case is pending — potentially endangering its viability in court — is one indication that the administration has other goals besides getting a conviction, said Peter Keisler, a former Justice Department official who served as acting attorney general in the final weeks of President George W. Bush’s administration.
“If you cared about actually making it stick, you wouldn't have the president issue public statements advertising his vindictive motive,” he said.
Though vindictive prosecution motions don't often succeed, “This is one of the very rare cases where the public record — and it’s a public record that the president himself has built — would make such a motion very strong,” Keisler added.
With a prominent public profile and an experienced legal team, Comey is better situated than most to bear the weight of government scrutiny.
But, Keisler added: “It's still the case that Jim Comey has to retain a lawyer, has to go through the process of being criminally tried if he doesn’t get the case dismissed first. And nobody can face the prospect of a criminal trial with complete equanimity even when they know there's no merit to the charge and even when it's a public fact that the only reason it was sought is as an act of vindictive retribution.”
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Associated Press reporter Seung Min Kim in Washington contributed.
