The Comey Indictment and its Aftermath
New strategies are needed to defend against the systematic politicization of federal law enforcement.
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President Donald Trump’s action to force the criminal prosecution of former FBI Director James Comey over the objections of professional prosecutors is a defining moment in debates over the implications of “unitary executive” authority over federal law enforcement. It has always been possible to hypothesize a bad faith, lawless presidency that seizes on constitutional authorities to commit abuses of power. Now the Comey episode sharpens to a fine point the significance of a presidency committed to seeking retribution against political enemies and using law enforcement for that purpose.
Where the Supreme Court has referred to the need for a president in the exercise of “‘conclusive and preclusive authority’” to “discuss potential investigations and prosecutions with his Attorney General,” the public observed in real time, in the Comey case, what this might mean: the president’s demand that she pursue “a GREAT CASE” against a long-time target of his ire, and that she keep in mind that “they impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!.” In the same September 20 post, Trump also explained why he fired the prosecutor who resisted bringing the “GREAT case” for lack of an adequate basis, and why he then appointed in his place a former personal attorney without prosecutorial experience whose practice specialty is insurance law.
Within 72 hours of taking office, the newly appointed U.S. Attorney—despite being briefed by the line prosecutors that the prosecution lacked merit—brought it anyway, in a rush to avoid missing the statute of limitations. The same morning, the president posted a seven-minute video of comments he made in the Oval Office about “many, many people,” a “group [of] Democrats,” who should suffer “severe consequences” for having committed “treason” in undermining his first presidency and rigging the 2020 elections. He cited Comey as one, but also “all the rest of them,” including the last two Democratic presidents.
The Comey indictment appears to be the opening phase of a program of presidentially directed political prosecutions. The question now is what in the short and longer term is the answer to this deeply serious problem.
What Hasn’t Worked
The answer does not lie in the vigor of norms that subordinate law enforcement officials follow to resist these courses of action. Trump has shown in the Comey case that he will fire the norm-compliant officials, like former U.S. Attorney Erik Siebert, and replace them with counsel who have established their loyalty in personal service. After Watergate, the Congress and the American Bar Association considered whether the Department of Justice should be reconstituted as an independent agency, removed from presidential control, but the consensus quickly developed that this went too far. At the time, it was believed that Watergate was the exception rather than the rule, and other measures could be taken, such as more systematic ethics training for lawyers, to ensure protections against political corruption of the legal system. That judgement— that norms could carry most of the weight—has proven to be unfounded.
Half-measures have also been attempted but with little success. The independent counsel statute provided for a special counsel, appointed by a special panel of the D.C. Circuit, to investigate allegations of high-level misconduct with some measure of independence from political influence. Both parties were satisfied with this institution when it operated to their political advantage, less so when its powers were aimed in their own direction. Congress finally agreed on a bipartisan basis to let the statute lapse. And the IC was replaced by special counsel regulations adopted and administered by the Department of Justice, which have been no less controversial and, again, on both sides of the aisle. A politicized DOJ under the unapologetic control of the president will not turn the regulations against the ‘Boss’ or any of his senior cabinet officers and aides.
Goldsmith and I argued in After Trump that the special counsel regulations could be saved with amendments, proposed them, and went so far as to offer specific language to effectuate them. By last year, Goldsmith concluded that there was no hope of salvaging the rules because, to state his point in simplest terms, politics would still intrude and prevent the impartial application of the rules to achieve their intended effect. I disagreed, in the belief that the worthy goal behind the independent counsel statute and special counsel rules might be hard to achieve, but not impossibly so. I have come to agree with Jack. Two bad outcomes will always loom: an attorney general who, fearful of political costs, will not supervise special counsels, letting them run wild, or an attorney general determined to prosecute the political target who will pick a willing special counsel and make sure that he or she does what is expected.
And in the old debate about special counsels, the president stayed largely in the background, with most attention paid to the role of the attorney general. There was some thought that, as a matter of norms, presidents would continue to keep their distance, exerting influence only directly. That was then.
Legal Reform and Other Responses
That there is no decisive or comprehensive legal reform on the model of the IC or the SC rules does not compel the conclusion that the country is doomed to cycles of retribution, or to alternating periods of lawlessness (and norm-lessness) and executive self-restraint. There are law reforms that, in conjunction with other strategies, could make a difference. What seems required is an “all systems” approach to the threat that is now unfolding and that could take root and expand to other presidencies.
I cannot explore here the strengths or weakness of each of the potential sources of potential checks on executive, or in detail the ways that reform and related initiatives to address the problem might be successfully—or as successfully as possible—implemented. This is an outline.
The Courts and the “Presumption of Regularity”
Of course, in both the short and longer term, much rests on the courts. Comey’s indictment is a major test of whether this administration receives the benefit of a “presumption of regularity,” which affords the broadest discretion to the executive in law enforcement and, “in the absence of clear evidence to the contrary, courts presume that [government officials] have properly discharged their official duties.” In the Comey case, we will see how the courts, on the record as it has developed and likely will continue to do so, apply the “clear evidence” standard in addressing selective-prosecution defenses. The establishment of robust precedent in this area will provide a crucial protection against the advent of thoroughly politicized law enforcement. And the Supreme Court will eventually have to confront the question of whether the full legal immunity presidents enjoy from actions within their core constitutional responsibilities, which extends to bad faith, politicized prosecutions, apply to the senior officials who engage in illegal actions in implementing a politicization agenda.
Grand Jury Reform
Strengthening defendant protections at the grand jury stage, when normally prosecutors have powerful influence over the proceedings, is one direction reform could take to empower those selected to grand juries to detect irregularity and check abuses of prosecutorial power. Various proposals have been made over time, such as staffing grand juries so that the grand jurors would have access to information and advice other than what prosecutors are willing to provide. A court-appointed counsel assigned to provide this advisory support is one such step to reducing the reliance—dependence, really—on prosecutors. Those same counsel could, for example, advise in particular cases that the jurors request that the government supply the exculpatory evidence in its possession.
The Legal Profession
During Watergate, the American Bar Association played an important part in the response to the Nixon Administration’s attempted cover-up of criminal offenses under investigation. Most notably, the ABA President Chesterfield Smith, a Republican, denounced the “Saturday Night Massacre” in which Nixon ordered the firing of special prosecutor Archibald Cox. This was an example of the public well-served by the organized bar, which added a respected voice to the furor over the firing and added to the pressure on Nixon to appoint a respected lawyer to replace Cox and to let him do his job. Later, the ABA acted to mandate professional ethics instruction for all accredited law schools.
Unfortunately, the ABA today has been swept up in the polarization of the times and does not enjoy the same influence or credibility across the partisan and ideological divide. Many conservatives contend that the ABA has forfeited this influence by taking politically progressive positions that suit the left and alienate the right. I do not here weigh in on the fairness or unfairness of this charge. But it has weakened the ABA’s power to be heard on “rule of law” issues involving this administration, or when politically and ideologically divisive questions of this kind arise.
Respected voices from within the legal profession still matter. The courts pay attention; the wider public benefits as well in trying to sort out what is really at issue in these controversies. Expert opinion responsibly expressed and bipartisan in character also supports civil society and private sector institutions as they evaluate whether and how to take public stands. This opinion can be mobilized issue-by-issue and can be organized and conveyed at the state and local as well as the national level. We have seen how this can work in the amicus briefs that hundreds of firms signed to express opposition to the Trump executive orders targeting law firms the president does not like and has sought to damage.
Civil Society/Private Sectors
Of course, lawyers do not comprise the totality of leadership on these issues. Civil society institutions—faith-based, business, veterans, charitable and other organizations—have the potential to move opinion and pressure elected officials on core concerns about impartial law enforcement. These are issues on which bipartisan agreement should be possible, at the very least because the Republican governments instituting criminal investigations of their “enemies” will one day be replaced by Democratic government under pressure (if not motivated) to settle scores. In the Jimmy Kimmel episode, one did not have to like, dislike or care one way or the other, about his monologue after the murder of Charlie Kirk, but the threats from the government to levy fines or yank licenses unless Disney and ABC pulled his show—and their decision to pull it—provoked intense bipartisan opposition.
The same opposition, motivated by the same concerns, can be mobilized to the use of law enforcement to quell or punish political critics or adversaries. Charities on the “right,” which have no sympathy for George Soros’ Open Society Foundation, cannot relish the prospect of politically targeted attacks on philanthropies that a different government may deem hostile. And yet the administration is reportedly poised to find a case against Soros and his charity, just as it dedicated itself to making one against Jim Comey.
Conclusion
The presidential power to direct criminal prosecutions for political ends has long been clear enough in theory. But norms were expected to do much of the work. If presidents did not respect them, it was widely believed subordinates would. The Comey case, with the remarkably detailed information (and more to follow) on executive motivation, marks an aggressive move toward the implementation of a program of politically retributive law enforcement. The press reports that “while several Department of Justice officials are worried about the strength of any case against Comey, multiple political aides share a different view: they prosecuted Trump, and so people like Comey deserve to be prosecuted, too.”
This is a new world, where law is the instrument of payback, and the administration now launching a program of systematic retribution is claiming that it is just returning fire with fire. Out of this dangerous situation may eventually come the recognition that no one side to this fight gains from its continuation. In the meantime, there should be a bipartisan movement to recognize that this is now both an immediate and a long-term problem, that what has been tried in the past to defend against politicized law enforcement has not been effective, and that new strategies are needed.