Comey indictment plunges the country into a grave new period

James Comey, the former FBI director, in Washington, Sept. 11, 2020. (Jared Soares/The New York Times)

By THE EDITORIAL BOARD

The events of last week in Virginia mark a dark new stage in President Donald Trump’s effort to turn federal law enforcement into a personal tool of oppression and vengeance. He is undermining a core promise of the American justice system: the fair and equal enforcement of the law.

On Thursday evening, his handpicked federal prosecutor for the Eastern District of Virginia, Lindsey Halligan, obtained an indictment of former FBI Director James Comey on highly dubious charges. The indictment came just four days after Trump installed her on an interim basis and just days before the statute of limitations on the charges would have expired.

He chose Halligan — his former personal attorney, who had no prosecutorial experience — for her willingness to be compliant. The president forced out her predecessor, Erik Siebert, after he refused to file charges in the Comey case and another one. Siebert’s staff spent months investigating before deciding there were no grounds for indictment. Trump responded with a social media post pronouncing Comey “guilty as hell” and vowed that Halligan would see to the prosecution of the cases in a way that her “woke” predecessor refused to do.

Long before this week, Trump crossed some of the clearest and most important lines in how justice is administered. He ran for office promising to prosecute his enemies and appointed loyalists who have ordered investigations of people he does not like. On their own, those moves deserved to be the biggest law enforcement scandal of the past 50 years. Yet they turned out to be just a start. He has now gone beyond ordering investigations to dictating their outcome.

He has removed any pretense that the law is blind. As despots have done for centuries, he is persecuting people he considers his enemies, with little justification other than raw political power. It is reminiscent of the old royal notion “L’état, c’est moi”: I am the state.

This country’s founders recognized precisely this danger. In the Declaration of Independence, they excoriated the British king for prosecuting Americans for “pretended offenses.” Over time, their descendants created a legal system that became the envy of the world.

There were certainly lapses, including during the Red Scares and the surveillance of civil rights leaders, when the Justice Department targeted people for political reasons. Yet the Watergate scandal helped inspire a new era. Presidents of both parties wisely chose to give the Justice Department more independence than most other parts of the executive branch. Attorneys general, along with the prosecutors who reported to them, built a culture of independence, supported by internal rules that made Justice Department officials, from both parties and from neither, justly proud. Over the past half-century, the department earned a reputation for fairness.

The system even held up during stresses. Almost 20 years ago, after President George W. Bush’s Attorney General Alberto Gonzales dismissed nine federal prosecutors for political reasons, congressional pressure led to Gonzales’ resignation. His sins never approached Trump’s, but the principle was clear: Turning federal prosecutors into political hacks would cost an attorney general his job.

Trump is dismantling that system. He has installed cronies in top posts, demanded that prosecutors place ideology and loyalty above the law, and dumped them if they dared point out that the imagined offenses would not hold up in court. By using the flimsiest pretexts to direct the prosecution of his perceived enemies, he is tearing at the basic notions of fairness that hold the country together.

His targeting of Comey is personal. The president despises Comey for refusing to pledge loyalty to him eight years ago and instead leading a criminal investigation into Russian meddling in the 2016 election. Trump has long claimed that Comey helped illegally leak classified information about the investigation to the media and that he lied to Congress about doing so. Siebert evidently found that case to be lacking.

The new indictment, which is strikingly brief and thin, charges Comey with one count of making a false statement to the Senate Judiciary Committee in 2020 and a second count of obstructing a congressional proceeding in the same testimony. In an unusual move, the grand jury rejected a third false-statement count that Halligan sought. Grand juries typically file the indictments that federal prosecutors ask for. Comey has repeatedly denied that he misled the Senate.

Comey is one person on a Trump enemies list. The president has also called for the prosecution of Letitia James, the New York attorney general who won a judgment against the Trump Organization for financial fraud, and Sen. Adam Schiff of California, who led Trump’s first impeachment in the House of Representatives. Trump says they should be prosecuted for supposedly lying on mortgage applications, the same pretext he is using to attempt to remove Lisa Cook from the Federal Reserve’s board of governors. Trump has also pushed federal prosecutors in Pennsylvania to indict former CIA Director John Brennan over his role in the Russia investigation. And a top Justice Department official recently ordered prosecutors to investigate George Soros’ Open Society Foundations, a liberal nonprofit group.

We know the response that Trump allies will offer, and it is wholly unpersuasive. They claim that the actions of Trump and his attorney general, Pam Bondi, are no worse than the Biden Justice Department’s decision to indict Trump. Those charges related to the Jan. 6, 2021, Capitol riot and the attempt to overturn the 2020 election, along with the removal of sensitive documents from the White House. If one side can weaponize justice, the thinking seems to go, then every side can.

But that notion buys into a false equivalence. In the earlier cases, there is no doubt that laws were broken, and there is significant evidence that Trump was a part of it. No such evidence exists as yet about his current targets. His fundamental position is that the law itself has no meaning — that he should be able both to break it when he chooses and to use it as a partisan weapon.

The ruination of an independent justice system is merely one way in which Trump is abusing the power of the presidency, and some congressional Republicans have spoken out against other abuses. Sen. Ted Cruz of Texas said that the recent push by Brendan Carr, the FCC chair, to keep Jimmy Kimmel off the air was “dangerous as hell” and sounded like a Mafioso “right out of ‘Goodfellas.’” Sen. Rand Paul of Kentucky has criticized the administration’s destruction of boats in the Caribbean Sea as “killing someone without a trial.” Other Republicans have criticized Trump’s move to cut spending without the approval of Congress.

Yet almost no elected Republicans have spoken out against Trump’s manipulation of prosecutorial power. Nor have they translated their expressions of concern in other areas into meaningful action. They need to do so. Because they control Congress, they alone have the power to hold investigative hearings and issue subpoenas, which would signal to all Americans that Trump is threatening the fabric of our society.

Misusing the power to imprison people is uniquely chilling in a free society. Our country has entered a grave new period of injustice.