One, Two, and Counting

The right to live under a fair and unbiased legal system, one that is governed by law and fact, is a core constitutional right. The Trump-infected Justice Department has now obtained indictments of two people Trump considers his enemies. These prosecutions, far from being legitimate law enforcement efforts, are part of the President’s personal vendetta against anyone who has ever tried to hold him accountable for his actions. More such indictments are expected, as the list of people Trump wants prosecuted is long and growing. These prosecutions constitute a frontal assault on one of our most important freedoms.  

The two people indicted thus far, James Comey and Letitia James, are often described as enemies of the President. But that is inaccurate: both were law enforcement officials who simply did their jobs. Comey, as head of the FBI, investigated Trump to determine the truth behind significant evidence that the Trump campaign worked with Russia to defeat Hillary Clinton in the 2016 election. James, as the Attorney General of New York, successfully convicted Trump of 34 felonies related to the falsification of business records that inflated his net worth and enabled him to get lower interest rates on loans over a period of years. James is sometimes criticized for intemperate remarks she made about Trump, but her actions as a prosecutor were appropriate. Both Comey and James, because of their positions, had responsibility for pursuing evidence of illegal conduct, and both undertook that work with professionalism.

While the extent of the evidence against Comey will not be known until trial, the case appears to be based on what one commentator called “compound untruths.” The indictment is unusually terse, less than a page and a half in length, and vague. Comey is accused of testifying falsely to a Senate committee when he denied authorizing the leak of information about an investigation to the press. The indictment does not make clear to whom Comey is supposed to have given approval to leak or even which investigation the alleged leak concerned.

The Comey indictment was presented to the grand jury by a single government attorney, Lindsey Halligan, who had been appointed by Trump just a few days earlier to be the lead federal prosecutor for the Eastern District of Virginia, which includes Arlington. Halligan presented the case to the grand jury by herself apparently because no career attorney in the Eastern District office was willing to support it. In a highly unusual development, the grand jury declined to bring one of the three counts she sought; Comey’s indictment as brought contains only two counts.

Another flaw in the case is a serious question about the validity of the process by which Halligan was appointed. Because hers is the only government signature on the indictment, if she lacked authority to sign it, the indictment likely will be thrown out. It probably cannot be superseded by another prosecutor or after a corrected appointment process for Halligan because the statute of limitations has now expired on the testimony involved.

The case against James appears to be even weaker than the one against Comey, although again the extent of the government’s evidence will not be known until trial. James is accused of lying on mortgage application forms about her intent to live in the house being mortgaged rather than rent it out, with the purpose of securing a lower interest rate on her loan. The forms she completed, however, prohibited her from entering into certain kinds of timesharing or other agreements governing the property, not from all forms of short-term rentals. Documents publicly available seem to show that she did, in fact, at one point enter into a short-term rental worth a total of $1,000-$5,000 in income, income she declared on her tax filings. The indictment does not allege that she entered into any type of prohibited agreement.  

As with the Comey indictment, Halligan’s signature is the only government signature on the indictment. Presumably this is because, as with the Comey indictment, career prosecutors in her office were unwilling to publicly support the case by signing their names.

Trump had demanded that these cases be brought. Indeed, he sent a message to the Attorney General in the form of a post on his social media platform, Truth Social, saying “We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”. Trump may have intended to send the message privately, as a DM, but posted it publicly by mistake.

Comey’s attorney has told the trial court that he will file pretrial motions to dismiss the indictment as an abuse of prosecutorial power because the case is “vindictive, . . . selective [and] retaliatory.” He will also move to dismiss the indictment on the grounds that Halligan’s appointment was invalid.

Some commentators, including the newly MAGA-adjacent Washington Post, contend that these indictments, while improper in some ways, are simply payback for improper actions, especially by James, targeting Trump. But the charges James brought resulted in 34 felony convictions. A jury found that they were founded on actual criminal behavior, and an appellate court upheld that finding. To claim that the respective sets of charges are equivalent is absurd.

Even if Comey and James ultimately prevail in their cases, they will have been forced to expend thousands of dollars and thousands of hours in their defense. The mere fact of bringing the indictments is a severe abuse of power. Like the ICE raids and military troops on the streets of our cities, these indictments are a direct assault on our fundamental constitutional liberties.

What can you do? Stay informed and raise your voice at every opportunity.