Lawfare Makes Us All Less Free
Comey's indictment sets a very dangerous precedent.
For the most part, I try to avoid writing pieces which respond to the latest big thing in the headlines about what Donald Trump’s second administration is up to.
This is in part out of a desire for some division of labor. There are lots of people who spend their days writing about Trump’s every move and utterance. They diligently chronicle all of the bad things his administration is up to. Often, I don’t feel like I can add something that isn’t widely known to anybody who has any desire to know.
It is also out of a belief that a constant stream of disdain isn’t what’s going to get the country out of the deep crisis in which it finds itself. The mainstream media has spent the past decade expressing its outrage about everything Trump has done wrong. For the most part, that ire was well-deserved. But all that sound and fury has added up to very little political change, with Trump more powerful today than he has ever been before.
In the end, the only way to defeat demagogues like Trump is at the ballot box. And while politics involves battle, and part of that battle is to define your adversary, the thing that’s most striking about America today isn’t how popular Trump is; it’s how weak and tired and unpopular his opponents are. So on most days, I feel that I can better serve the goal of defeating Trump by being an in-group critic than by being an out-group detractor.
But I would like to think that my reluctance to cry wolf, or to beat up on Trump every single day of the week, buys me some credibility as an arbiter of when something he does is truly dangerous. Recent attempts to undermine the independence of the judicial system and go after his personal enemies unreservedly qualify. Unlike a lot of other stupid or unseemly things the administration has done, they are a five-alarm fire.
One of the most awesome powers of the modern state is its ability to imprison people who have violated the law. This is why the Founding Fathers were so obsessed with procedures and principles meant to protect citizens from arbitrary arrest. As they recognized, no liberty worth its name is possible when a head of government, even one elected by popular vote, can direct the machinery of the state to punish those who have displeased him. And yet, that is precisely what Donald Trump is attempting to do in the case of James Comey.
Comey is a complex figure.
He loves to present himself as a public servant of unimpeachable civic virtue, always faithful to his higher calling of serving the constitution. And yet, he has, over the last decade—in part by virtue of happenstance, and in part by virtue of his own decisions—found himself at the center of one political firestorm after another. In the process, Comey has earned himself the enmity of both the left (who blamed him for Hillary Clinton’s loss after he took the unusual step of writing to Congress about reopening an investigation into her emails days before the 2016 presidential election) and the right (who blamed him for instigating an investigation into spurious links between Trump and the Kremlin which significantly hamstrung his first presidency).
In a sense, this makes Comey a victim of the high moral standards to which he so ostentatiously holds himself. We live in a moment in which the public is much more willing to forgive depravity than hypocrisy. Politicians like Trump get away with tremendous corruption in part because they never claim to be better than you or me. Public servants like Comey, by contrast, inspire so much mistrust in part because they hold themselves out as paragons of virtue. In our cynical age, this raises the immediate suspicion that they can’t possibly be as perfect as they claim—which, the world being the world, and people being people, usually turns out to be at least somewhat true.
Personally, I feel that we should have greater admiration for somebody who holds himself to high moral standards and ultimately falls a little short than for somebody who proudly disdains the idea that there should be moral constraints on how to act at all. But at some gut level, I do understand why hypocrisy feels singularly galling, and even why this inspires in some people an instinctive dislike of Comey.
Here’s the thing though: Comey’s likability, even his moral status, is not what matters about the news that a grand jury in Virginia has just indicted him.
The published indictment of Comey is so brief and cryptic that it is hard to tell what exactly he stands accused of. According to initial news reports, the accusation may be that Comey perjured himself when telling Congress that he had never authorized his then-deputy, Andrew McCabe, to leak to the Wall Street Journal a confidential conversation about the investigation into Hillary Clinton’s emails. If this is true, the main evidence for this accusation seems to come from McCabe himself, and he is unlikely to be regarded as a credible witness by a jury; after all, an independent investigation about his conduct in this very matter concluded that he had “lacked candor, including under oath, on multiple occasions.”
But what makes this case truly concerning is not the substance of it, remarkably thin though it may turn out to be; it is the extraordinary manner in which the President of the United States openly demanded that the government should go after somebody he sees as an enemy, and used executive power to bring about that outcome.
A few days ago, Trump wrote a remarkable message, which explicitly mentioned Comey, to Pam Bondi, the attorney general, on TruthSocial: “Pam: I have reviewed over 30 statements and posts saying that, essentially, same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? … 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!!! President DJT.”
These weren’t mere words. Over the last weeks and months, Trump has fired multiple prosecutors when they didn’t prove sufficiently willing to do his political bidding. In fact, the prosecutor who was handling the investigation into Comey was apparently fired after determining that it would be inappropriate to charge him in this matter; it is only after Trump appointed a new prosecutor, who had previously served on his own legal team and does not have any experience in federal law enforcement, that the Justice Department decided to indict.
All in all, the extreme degree to which this prosecution comes at the direct behest of Trump is well-nigh comical:
An inexperienced prosecutor loyal to President Trump, in the job for less than a week, filed criminal charges against one of her boss’s most-reviled opponents. She did so not only at Mr. 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.
Trump is not the only political actor to abuse the judicial system to go after his opponents. Indeed, it is surely true that some of his anger is occasioned by the way in which he himself suffered a prosecution that was deeply political.
After Trump left office in 2020, there were a number of actions for which he could credibly have been prosecuted. Most obviously, his demand that Brad Raffensperger, the Secretary of State of Georgia, “find” the votes he needed to win the state was deeply immoral and likely illegal. But Fani Willis, the elected District Attorney in Fulton County, badly bungled the case. In the end, the only criminal prosecution that was allowed to proceed to trial concerned a matter that was far less morally weighty and far more legally dubious.
That case, which revolved around Trump paying hush money to Stormy Daniels, a famous porn star, substantially turned on the argument that Trump should have declared the payments as a campaign contribution. It was brought by Alvin Bragg, who had been elected to the position of Manhattan District Attorney by one of the most heavily Democratic-leaning electorates in the country after repeatedly promising during his campaign that he would hold Trump accountable. And it used a previously untested and highly unusual legal construct, according to which Trump’s alleged commission of a misdemeanor under New York law was elevated to a felony on the theory that he was doing so in furtherance of, or to conceal, another crime—apparently a federal election violation that the state never made an attempt to prove.
The degree to which all of these prosecutions have been bungled and mired in partisan interests demonstrates that there are deep structural problems with America’s judicial system. Most notably, the extent to which prosecutors and district attorneys and judges are elected, and therefore need to campaign for their positions, is highly unusual by international standards. Those structural flaws may have been sustainable during less polarized periods of American politics; now they make it hard for citizens to trust that justice is impartial when it comes to the most controversial—and therefore important—cases.
But the danger which now emanates from the White House goes much further than these longstanding structural flaws. The federal government has incomparably greater resources at its disposal than any single district attorney. The FBI can go after supposed suspects in every part of the country. The dangerous profusion of federal laws makes it easy to concoct some charge against virtually anybody, especially if they have served in public office. And prosecutors have historically found it so easy to procure indictments that New York Chief Judge Sol Wachtler famously said that he could, if he so chose, get a grand jury to “indict a ham sandwich.”
For now, the justice system still retains enough independence that Trump may not be able to put his enemies behind bars. Though Comey has now been indicted, scrupulous legal observers like Andrew C. McCarthy, of the National Review, expect that his case may be quickly dismissed, and that he would likely prevail even if the matter does come to a jury trial. But if Trump’s political opponents come to fear that anybody who sufficiently inspires his ire will need to go through the scary and costly process of defending their liberty in federal court, then even the prospect of their eventual acquittal won’t stop political speech in America from being chilled to an astonishing degree.
A key challenge for our political system is that its principles are as obscure, and seemingly even contradictory, as they are important.
We live in a political system which claims to let the people rule. And yet, a core component of it is to grant individuals very far-reaching rights designed to insulate them against the tyranny of the majority, like the freedom of speech and the freedom of worship.
We live in a political system which delegates vast powers to an elected president, allowing him to impose his agenda on the country, and especially the executive branch, for the length of his term in office. And yet, a key component of this system is to ensure that important state agencies, including key parts of the executive branch itself, should act in a manner that is independent of the president’s will and his whim.
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These seemingly contradictory principles are difficult to explain to ordinary citizens. When they are violated, neither the nature of the problem nor the magnitude of the consequences are intuitive. Millions of decent Americans probably greeted the news of Comey’s indictment with a shrug; powerful people, they may have thought to themselves, always play stupid games with each other; who wins or loses any one round doesn’t really affect the rest of the country.
But though the kind of lawlessness pursued by Trump’s second administration always starts by affecting political insiders like Comey, it has a way of spreading throughout the system. If a former Director of the FBI can be prosecuted for his political disloyalty, there’s a real danger that ordinary citizens won’t be far behind. And that’s why the opaque and seemingly convoluted saga of Comey’s indictment should matter to all Americans, left or right, liberal or conservative, who value their liberty.
One side invents a hoax against a newly elected President. The other side prosecutes crimes. And you side with the former?
If a president came to power following a predecessor from the other party whose administration committed a series of crimes, prosecuting those people for those crimes would inevitably look like revenge. It’s not.