Trump gets the retribution he sought, and shatters norms in the process

President Donald Trump shakes hands with James Comey, the FBI director, at the White House in Washington, Jan. 22, 2017. Comey’s indictment comes after years of relentless demands by Trump for punishment over the FBI’s investigation into possible Russian ties to Trump’s 2016 campaign. (Al Drago/The New York Times)

By KENNETH CHANG

The clearest way to understand the extraordinary nature of the indictment last Thursday of James Comey, the former FBI director, is to offer up a simple recitation of the facts.

An inexperienced prosecutor loyal to President Donald Trump, in the job for less than a week, filed criminal charges against one of her boss’ most-reviled opponents. She did so not only at Trump’s direct command, but also against the urging of both her own subordinates and her predecessor, who had just been fired for raising concerns that there was insufficient evidence to indict.

The charges, which were filed around 7 p.m. in U.S. District Court in Alexandria, Virginia, thrust the Justice Department into perilous new territory. The push for the indictment trampled over the agency’s long tradition of maintaining distance from the White House and resisting political pressure, and it raised the prospect of further arbitrary prosecutions pushed by Trump against his enemies.

Heightening the break-glass moment, the felony charges against Comey, who stands accused of making false statements and obstructing justice, were rushed into court as Trump’s handpicked prosecutor, Lindsey Halligan, hurried to beat the quickly approaching statute of limitations on Comey’s purported crimes.

The rush to prosecute Comey was the clearest example yet of how the normal process of justice has been reversed under Trump, showing how the president came into his second term with targets already in mind and ultimately pressured the Justice Department, over a degree of internal resistance, into finding a way to charge a former director of the FBI.

Halligan, who had been working as a top official in the White House staff secretary’s office and had previously served as a personal lawyer for Trump, had until now never prosecuted a single case in her career.

Trump nevertheless appointed her as interim U.S. attorney in the Eastern District of Virginia on Monday afternoon, after publicly berating Attorney General Pam Bondi on Saturday night for not moving more aggressively to prosecute Comey and two other figures who are longtime targets of his retribution campaign, Letitia James, New York’s attorney general, and Sen. Adam Schiff, D-Calif.

Although Halligan had not been fully briefed on the Comey case before arriving and despite an energetic effort by the career professionals under her to dissuade her from bringing charges, she did exactly that. In a highly unusual move for a top federal prosecutor, she personally presented the case against Comey to the grand jury, according to two people familiar with the matter.

In voting to indict, the grand jury judged that the evidence it heard indicated that there were reasonable grounds to believe that Comey might have committed a crime. But prosecutors have expansive sway over grand juries, and it remains unclear, given the secretive nature of such bodies, how much the grand jurors were aware of the broader circumstances of the case.

Since his first term in the White House, Trump has wanted prosecutors who would follow through on his desire to use the legal system to punish his perceived enemies, mostly in vain. He often railed to his own advisers and on social media about those he wanted to face charges but who were never prosecuted — among them, Hillary Clinton and former Secretary of State John Kerry.

But in his second term, Trump has recruited Justice Department officials who share his sense of persecution and has been emboldened by a Supreme Court ruling granting him a broad form of immunity from prosecution. That has allowed him to effectively lay waste to the post-Watergate norms that for nearly half a century have kept presidents from intervening directly in the affairs of the Justice Department.

In the past eight months, Trump’s Justice Department has summarily fired scores of prosecutors and agents who worked on the criminal cases that he faced while he was out of office. And he has often used those cases as a justification for seeking retributive prosecutions not only against Comey, but also against other opponents like James, who pursued a civil case against him in New York, and Schiff, who while serving in the House led impeachment hearings against him.

But the two-count indictment against Comey is the most far-reaching and public example of the second Trump administration’s efforts to co-opt the criminal justice system. And while Trump’s allies see it as an overdue and legitimate effort to hold Comey accountable for what they consider an abuse of power, it could well go down as a moment when a fundamental democratic norm — that justice is dispensed without regard to political or personal agendas — was cast aside in a dangerous way.

“What we are seeing is the almost wholesale collapse of the Justice Department as an organization based on the rule of law,” said Alan Z. Rozenshtein, a former department official who teaches at the University of Minnesota Law School.

That Trump could successfully initiate such a case also increases the potential costs of opposing him, an expansion of presidential power that could chill public dissent across the country.

Even before Comey was indicted, Trump and his allies defended bringing charges against him, claiming it was a form of payback for the hardships that Trump had faced as a defendant and arguing that turnabout in the courts was simply fair play. After the indictment became public, Trump posted on his social media site, “JUSTICE IN AMERICA!”

But while Trump was pursued by multiple prosecutors and ultimately indicted in four different venues, there were glaring differences between those investigations and the case against Comey.

In none of the Trump cases, for example, did President Joe Biden ever go on social media and publicly declare his desire for Trump to be prosecuted to millions of followers. Nor did Biden appoint one of his own personal lawyers to oversee any of the Trump cases, two of which were handled by an independent special counsel, Jack Smith, and two of which were brought by local prosecutors operating beyond the control of the president.

Comey’s lawyers are likely to seek to make hay out of the fact that Halligan’s predecessor, Erik S. Siebert, chose to quit his job rather than move forward with the case. They could also try to get their hands on — and then exploit to their advantage — a memo written by members of Siebert’s staff about why an indictment should never have been filed in the first place.

Moreover, Trump’s own remarks about the case could come back to haunt him.

Over the weekend, Trump preemptively declared on social media that Comey, James and Schiff were “all guilty as hell, but nothing is going to be done.” A prejudicial statement like that could easily be featured in a motion accusing the Justice Department of taking part in an improperly vindictive prosecution.

Speaking to reporters in the Oval Office on Thursday, Trump insisted that he had no control over the prosecution.

“I can’t tell you what’s going to happen because I don’t know,” he said. But he soon added: “I can only say that Comey is a bad person. He’s a sick person. I think he’s a sick guy, actually.”

Comey was indicted about seven hours later.