“If Trump was sort of ‘untouchable’ as a candidate for president, could Comey declare as a candidate for president to get the same treatment?”
— Jan
Hi Jan,
Not exactly.
As a criminal defendant last year, Donald Trump benefited from being a former president, not just a current presidential candidate.
But being a candidate and, more importantly, winning the 2024 election, helped Trump, too. His political victory cut his criminal caseload in half by getting his two federal cases dismissed (his two state cases are still in flux). Had he lost the election, his status as a former candidate wouldn’t have saved him from facing charges; we’ll never know the extent to which his status as a former president would’ve saved him, because that was still being litigated when he won the election.
When it comes to former FBI Director James Comey, who faces a Trump-demanded indictment brought by a Trump loyalist over the objection of experienced prosecutors, I’m unaware of any suggestion that he wants to run for office in 2028. But if he does, then it might benefit him somewhat in his criminal case — that is, if his case is still pending years from now, given the possibility that it gets dismissed early in the process. Even then, though, it would depend on what Comey would want to accomplish in that hypothetical scenario. It’s not as simple as a defendant saying they want to be president and then their case gets dismissed. If it were, then we would probably see more people doing that. Rather, any benefit would likely initially be more in the form of potential delay, to the extent that Comey would see delay as beneficial. And of course, if he were to win the presidency in this scenario, then, like Trump, he would benefit from the Justice Department’s policy against prosecuting sitting presidents. Again, that’s if his case would still be pending trial in 2028, which seems unlikely at this point. Turning away from the hypothetical and toward the practical, I would point to Comey’s reaction to his indictment: “Let’s have a trial.” Putting aside the question of whether he could get special political treatment in this hypothetical scenario, his public stance to date suggests that he isn’t seeking such treatment. Unlike Trump’s defense strategy, it appears that Comey doesn’t want delay. His arraignment is set for Thursday, so we should learn the latest in the case then. Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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