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In April, the federal government indicted former FBI Director James Comey for his “86 47” Instagram post, which it claims was a true threat to kill or harm President Trump. Comey last month filed a motion to dismiss the indictment for vindictive and selective prosecution. The government last week filed its response.
In the response, the government denied that there was any evidence “beyond media speculation” that President Trump “directed then-Acting Attorney General Blanche, let alone the actual prosecutorial decisionmaker ([North Carolina] U.S. Attorney [W. Ellis] Boyle), to prosecute Comey in EDNC.” It then proclaimed:
And even if there were, the Chief Executive directing his subordinates to exercise core Executive functions is a feature, not a bug, of our constitutional system. The purported “independence” of DOJ that Comey cites, DE 36 at 2, is antithetical to the constitutional separation of powers (which lodges the Executive power in the President alone). See Trump v. Slaughter, 146 S. Ct. 2283, 2303 (2026). And as a matter of historical analysis, it is a myth.
There is a defensible Article II point buried here. Presidents since Washington have ordered federal prosecutions. Most administrations since Watergate have honored a functional norm that curtailed White House influence on DOJ law enforcement decisions. The Trump administration rejects this norm. And with the norm rejected, as a matter of Article II power, it is right: the president can direct a prosecution.
But the presidential power to direct a prosecution cannot justify a vindictive or selective prosecution. The unitary executive justifies vertical presidential control within the executive branch. It does not excuse executive branch actions that (as Comey alleges) violate the First Amendment or equal protection and due process principles.
And indeed, looked at another way, Trump 2.0’s maximalist unitary executive structure aids Comey’s claim of vindictive prosecution.
The Trump administration does not merely claim that the president has unitary executive power over the Justice Department in theory. Rather, by executive decree and consistent practice, it has made clear that the Department in fact has no independence from the president.
In February 2025, the president issued an order declaring that the “President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.” It added that “[n]o employee of the executive branch . . . may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to . . . positions advanced in litigation . . ..”
It is plausible to read the order to mean that if the president applies law to fact to conclude and declare that someone is guilty and should be prosecuted, no deviation from this conclusion is permitted within the executive branch. And this is exactly how the administration has understood the unitary executive in this context, since it has fired many lawyers for defying the president’s demand that his enemies be prosecuted.
Several prosecutors were demoted or pushed out of the Eastern District of Virginia for refusing to prosecute Comey in a different matter. When another EDVA prosecutor declined to revive an earlier attempted prosecution of Comey that failed, he, too, was fired.
After Erik Siebert, the U.S. Attorney for EDVA, found insufficient evidence to charge New York Attorney General Letitia James even though Trump had long demanded it, Trump said, “I want him out;” Siebert quickly resigned. Other career prosecutors reached the same basic conclusion, and they were fired for that reason by Trump’s loyalist, then-interim U.S. Attorney Lindsey Halligan.
There is other evidence of prosecutors fired for resisting the president’s wishes for prosecution of foes. And Attorney General Pam Bondi was pushed out partly due to her failure on this score.
This practice and its unitary executive legal underpinnings—not just the president’s order, but scores of legal briefs and other public actions and representations—make clear that subordinate executive branch officials, including DOJ officials, must follow the president’s will, including his prosecutorial demands.
The administration’s maximalist conception of the unitary executive is relevant to Comey’s vindictive prosecution claim. To prevail, Comey must show that he was punished “because he has done what the law plainly allows him to do.” The case law imposes a relatively high bar on such a claim.
The government invokes that bar to argue that whatever animus Trump harbored toward Comey cannot be attributed to U.S. Attorney Boyle, who brought the indictment. Boyle swears that he alone made the decision to prosecute.
But given the wishes of the president, the acknowledged absence of DOJ independence, and the formal and functional orders to follow the president’s will on pain of firing, Boyle had no lawful or practical choice. He was bound to execute the president’s vindictive wishes. He had to find a way to prosecute Comey, at least if he wanted to keep his job.
I can put the point another way. The two sides dispute Fourth Circuit and other circuit precedent on whether and when vindictiveness can be shown by proving that the charging prosecutor was influenced by a superior. I won’t get into those legal weeds here, since this case is unique. Any legal hurdle to inferring the vindictiveness of this charging prosecutor from the vindictiveness of this president should be lowered, if not eliminated, by the Trump administration’s unprecedentedly extreme claims of unitariness.
The Trump administration cannot have it both ways. It cannot claim extreme unitariness and fire people for failing to follow the president’s demand to indict enemies, on the one hand, and then claim, on the other, that the prosecutor in the Comey case made an independent decision to prosecute, uninfluenced by the president’s vindictive commands.