In the United States, a president should never order prosecutions of his enemies. As the former ethics counsels for Presidents George W. Bush, Barack Obama and Bill Clinton, we never once saw them or anyone working for them suggest that the Department of Justice should prosecute a specific person, much less a political adversary. Under all three presidents, the White House policy was not to comment on a Department of Justice indictment; the president in particular did not comment either — before or after. The Justice Department made prosecutorial decisions independent of the White House.
Political prosecutions happen in dictatorships such as Vladimir Putin’s Russia, but not here. And prosecutors should never be forced out for refusing to bring unfounded charges, even if the president orders them to do so. Yet all that changed last week with the indictment of former FBI Director James Comey.
The retaliatory nature of an indictment is evident from the eight-year crusade by Trump against Comey.
We have written the chairs and ranking members of the Senate and House Judiciary committees, as well as the DOJ’s inspector general and counsel for the office of professional responsibility. In those letters (on which this essay is based) we urgently request an investigation into possible prosecutorial abuses and ethics violations by Lindsey Halligan, the newly appointed interim U.S. attorney for the Eastern District of Virginia, in connection with her having improperly brought charges against Comey.
While all the facts are not yet known, if it is the case that Halligan pursued this indictment to fulfill President Donald Trump’s long-standing personal vendetta against Comey and against the recommendations of prosecutors who failed to find sufficient evidence to support a conviction, it will be one of the most egregious examples of vindictive and meritless prosecution that we will have ever seen. (In a statement, Comey said, “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.”)
Trump sought to fire longtime prosecutors who refused to proceed against his political enemies after the same prosecutors apparently concluded criminal charges were unfounded. And the president then installed a handpicked replacement in the federal prosecutor’s office in Virginia who immediately sought an indictment of Comey — despite reports that she also was told the case is unfounded.
If the Trump administration can do this, then no American is safe from political prosecution.
The false statement and obstruction charges brought against Comey appear to be based on old and false claims that Comey lied to Congress. In May 2017, Comey testified in the Senate Judiciary Committee that he did not authorize anyone at the FBI to be an anonymous source for news reports about the Trump or Hillary Clinton investigations. In September 2020, he testified that was still true.
Initially, it was thought that the contrived case that Comey lied in this testimony turned on former FBI Deputy Director Andrew McCabe’s statements that, in an October 2016 conversation between the two, Comey had authorized a leak regarding the Clinton probe. The Department of Justice’s 2018 inspector general report into McCabe’s conduct does not support the allegation that Comey lied to Congress. In fact, the report concluded that “the overwhelming weight of that evidence supported Comey’s version of the conversation.”
Probable cause is the minimum standard that an indictment must meet.
New reporting, however, indicates that the indictment is based on the allegation that Comey lied about authorizing his friend and adviser, Columbia law professor Dan Richman, to leak to the media. If this is the case, the prosecution will also likely fail. The indictment alleges Comey made a false statement at the September 2020 Senate hearing that he did not authorize a leak — but Comey’s statement was in response to Sen. Ted Cruz’s specific questioning about a leak involving McCabe. So it is difficult to see how Comey can be accused of lying about Richman. Additionally, the FBI questioned Richman about these issues and he denied Comey asked him to talk to the media, leading the FBI originally to conclude that “the investigation has not yielded sufficient evidence to criminally charge any person, including Comey or Richman, with making false statements.”
Many if not all of these allegations against Comey were reviewed by the DOJ during the first Trump administration and again during the Biden administration. The DOJ decided not to prosecute, probably because the evidence of his purported untruthfulness with Congress was so weak.
The retaliatory nature of an indictment is evident from the eight-year crusade by Trump against Comey over the FBI’s investigation into Russian interference in the 2016 election. This led to the president’s firing of Comey in 2017, and then Trump’s calls for his prosecution even before Comey’s September 2020 testimony that became part of the indictment.
Trump has put direct pressure on prosecutors to go after his opponents, including the recent ouster of the interim U.S. attorney for the Eastern District of Virginia, Erik Siebert. Siebert resigned last week amid a push from the White House to bring prosecutions against the president’s political opponents such as New York Attorney General Letitia James.
The president replaced him with Halligan, one of his former personal attorneys, who has no prosecutorial experience. As the new interim U.S. attorney, she sought an indictment of Comey on false statement and obstruction charges just before the statute of limitations for bringing those charges expires. Indeed, according to some reports, career prosecutors sent Halligan a detailed memo recommending that she decline to bring perjury and obstruction charges against Comey and that the investigation failed to establish probable cause to believe Comey committed a crime. Under the Virginia State Bar’s rules of professional conduct, a prosecutor is barred from filing or maintaining “a charge that the prosecutor knows is not supported by probable cause.” Probable cause is the minimum standard that an indictment must meet, and the Justice Department’s own principles of federal prosecution absolutely bar prosecutions where there is a failure to meet this minimal requirement. Furthermore, the principles provide that the prosecutor “should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction.” And “no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.” In the Comey case, Justice Department lawyers who previously reviewed the evidence apparently thought it was unlikely they had sufficient evidence to obtain a conviction. Equally important, the DOJ principles provide that in determining whether to commence or recommend prosecution or take other action against a person, the prosecutor may not be influenced by “the person’s political association, activities, or beliefs” or “the possible effect of the decision on the attorney’s own professional or personal circumstances.” The discovery that the judge will likely order here alone will be enormously compromising in a variety of ways. The Comey matter is rife with procedural improprieties that are prejudicial to Comey’s right to a fair trial, regardless of the substance of any charge. It is not proper to comment on what’s going on in a grand jury, it’s not proper to impugn an uncharged person, and it’s certainly not appropriate for a president to say that a subject is “guilty as hell,” as Trump did of Comey last week, and then for the president to seek to fire a prosecutor who refuses to prosecute him and substitute a replacement who will. Indeed, a criminal case against Comey could be a nightmare for any prosecutor on both vindictive and selective prosecution grounds and on the merits. The discovery that the judge will likely order here alone will be enormously compromising in a variety of ways. If federal prosecutors do not want to go down this road, they should spend their time, and taxpayer money, prosecuting real criminals, not the president’s political enemies. Instead, the Justice Department is still reportedly looking at charging Letitia James and is also said to be investigating Fulton County, Georgia, District Attorney Fani Willis, not to mention Sen. Adam Schiff, former CIA Director John Brennan, former national security adviser John Bolton and many others. No American should have to go through the experience of being prosecuted under these circumstances, and the rest of us should not have to live in fear that it may also happen to us. We do not live in a dictatorship, at least not yet.
Richard W. Painter
Richard W. Painter was the chief White House ethics lawyer from 2005 to 2007 under President George W. Bush. He is the S. Walter Richey Professor of Corporate Law at the University of Minnesota and is a graduate of Harvard College and Yale Law School.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Virginia Canter
Virginia Canter is chief anticorruption counsel for State Democracy Defenders Fund and former chief ethics counsel for Citizens for Responsibility and Ethics in Washington (CREW). 
