Wait, Can He Actually Do That? Part 21: The Comey Indictment
It has been over a month since my last entry in this series, but that is hardly because there has been any shortage of legally dubious actions by the Trump administration. On the contrary, the sheer volume of law breaking and law bending has frequently led me to skip the "Wait, Can He?" prefix and proceed from one to another presidentially generated crisis. I return to the series today because my analysis of the politically motivated indictment of James Comey underscores a point that has usually been the conclusion of my entries in the series: To answer the question whether Donald Trump and/or his agents can actually do many of the dangerous things they do, it is not sufficient to know whether the actions in question are lawful; even if they are unlawful, Trump can often get away with those actions because of the inability or unwillingness of other actors to stop him.
Seeing Comey’s case from that perspective, let’s identify the various actors who might have prevented (but didn’t prevent) Comey from being indicted and those who can now prevent him from being convicted and sent to prison.
Trump Himself
Donald Trump bears primary responsibility for turning the Justice Department and other organs of the federal government into vehicles with which to persecute those persons he believes have wronged him. Any fair accounting of the actors who could have but failed to block Trump's most illiberal anti-democratic actions must begin with Trump himself.
Although Trump is impetuous, egotistical, and vindictive, he is capable of self-control. For example, he pressured his Justice Department to indict Comey and other perceived political enemies; he did not hire a hitman or enlist Seal Team 6 (and promise them all pardons) to kill those perceived enemies. Maybe Trump would simply order his political rivals and enemies killed if he operated in a system like the ones that Vladimir Putin and Kim Jong-un do. Maybe Trump will resort to political murder in the future he is creating by attacking the institutions that sustain constitutional democracy. But the fact that he hasn’t yet resorted to political murder shows that he can restrain himself, which in turn means that he can and should be deemed responsible for not restraining himself enough to avoid ordering political prosecutions.
Advisors
During his first term, President Trump repeatedly floated the possibility of taking actions that would have seriously undermined our constitutional system. He was repeatedly rebuffed. The most important pushback came at the end of his term, when Vice President Mike Pence refused to bow to Trump’s pressure to use his position as Vice President to validate Trump’s bogus claims of voter fraud by not counting the Electoral votes of key states Joe Biden won. Pence was able to rebuff Trump partly through strength of will but also because Pence was not an advisor to Trump on the certification matter. Under the terms of the 12th Amendment, Pence, as Vice President and thus President of the Senate, rather than Trump, as President, held the relevant power.
That said, during his first term, Trump’s cabinet and White House staff also pushed back successfully against many of Trump’s most outrageous plans. They did so even though they served at the pleasure of the president. Many of the people Trump now regards as enemies—including James Mattis, Mark Milley, Rex Tillerson, H.R. McMaster, Mike Pompeo, John Kelly, and others—reined in some of Trump’s worst impulses. Some of them eventually lost Trump’s confidence and their jobs, but in the interim they had a moderating impact.
The record of Trump’s first term thus establishes that it is possible to persuade Trump not to carry out whatever maniacal scheme he concocts or is pitched by Sidney Powell or Laura Loomer. Indeed, it’s not just possible to change Trump's mind. It is apparently somewhat easy. As we saw last week when, after a conversation at the UN with Volodymyr Zelensky, Trump once again changed his position on U.S. support for Ukraine’s defense against Russia, Trump will routinely change his position based on whatever he heard from the last person who spoke to him.
Thus, Trump’s current team of advisors could have pushed back against his weaponization of the Justice Department without necessarily risking their jobs. And apparently, some did, at least a little. Reportedly, Attorney General Pam “Bondi and Todd Blanche, the deputy attorney general and the president’s former defense lawyer, lobbied hard to keep [Erik] Siebert in place” as US Attorney for the Eastern District of Virginia despite Siebert's judgment that there was insufficient evidence to bring and win a criminal prosecution against Comey for lying to Congress. Maybe Bondi and Blanche did in fact lobby Trump hard and were simply overruled. But even if so, they pretty quickly folded. Trump ousted Siebert (over his failure to indict Comey or NYS Attorney General Letitia James) and publicly insisted that Bondi move quickly to indict Comey. Bondi promptly appointed Lindsey Halligan to do Trump’s bidding, which she dutifully did.
Thus, if the news accounts of Bondi's initial reluctance to fire Siebert are accurate, Bondi deserves a little credit for standing up to Trump. But given how quickly she folded, only a very little. After all, Bondi had another option. She could have followed the path laid down by Ellliott Richardson and William Ruckleshaus by refusing to take part in Trump’s corrupt scheme and forcing Trump to fire her. At that point, anyone who cooperated with Trump—most of all Halligan but also anybody who agreed to serve as acting Attorney General in the wake of Bondi’s dismissal—would have been tainted to at least as great an extent as Robert Bork was tainted by his role in the Saturday Night Massacre.
I am aware that the resignation scenarios I am suggesting never had a realistic chance of playing out. After all, Bondi, Blanche, and just about everybody currently working in high-ranking positions in the second Trump administration or the White House were selected because they were expected to be loyal to Trump. But that doesn't mean they should not be judged accountable for their actions any more than we would excuse a mafia captain for carrying out the boss's evil orders. The people who chose to work for the current incarnation of Trump made a deal with the devil when they took their current jobs, but they compound their guilt every time they facilitate one of his corrupt schemes.
Grand jurors
Apparently, 9 of the 23 members of the grand jury voted against indicting Comey on any charges. Because it takes only a majority to indict, however, Comey was indicted on two of the three charges for which Halligan was seeking indictment. It's tempting to blame at least three of the grand jurors who voted yes on the two charges for failing to do their duty. Despite the proverbial wisdom that a grand jury will indict a ham sandwich, the vote on the third charge shows that a majority of this particular grand jury understood that they did not have to do anything and everything the prosecutor (Halligan in this case) asked of them.
Of course, I don't know what transpired in the grand jury room, but it is nonetheless possible that the grand jurors who switched their votes from "no" to "yes" on the two counts that did produce an indictment were acting appropriately. The evidence that Comey was lying to Senator Ted Cruz when he reaffirmed his earlier testimony that he did not authorize Justice Department leaks is very weak. It relies on the assumption that Andrew McCabe was telling the truth when he said that Comey authorized leaking, even though prior investigations indicated that Comey was telling the truth and McCabe was either lying or misremembering. Even so, the third charge--that Comey was lying to Congress when he told Lyndsey Graham that a story that Hillary Clinton's 2016 campaign "was going to create a scandal regarding Trump and Russia" "didn't ring a bell"--is even weaker. To prove that Comey was lying in saying essentially "I don't remember," the government would need to show not merely that such a story was circulating and that Comey heard it but that he remembered doing so and falsely claimed not to. It is not impossible to convict someone of perjury or other dishonesty crimes when they claim not to remember something they in fact remember, but it is extremely difficult.
Thus, we might be able to cut some slack to the grand jurors who voted no on count 3 but yes on counts 1 and 2. Impressed by how low the standard of proof is for the one-sided presentation of evidence before a grand jury, they could have concluded that the weak evidence on the first two counts just barely cleared the low bar but the extremely weak evidence on count three did not.
To be sure, the grand jurors who voted for indicting Comey could have instead engaged in grand jury nullification--much as the DC grand jury that refused to indict now-famous sandwich hurler Sean Dunn did. But in order to nullify, grand jurors must know they have the power to nullify. Given the way that prosecutors dominate a grand jury proceeding, the jurors will not be informed of that power. Those people who come to grand jury service knowing that they can effectively refuse to indict for any reason--including mercy for the target or, as in a case like this, the view that the prosecution is politically motivated--will be emboldened by that knowledge, but without any special status, they may well be unable to persuade other grand jurors to nullify. Those others may well conclude that their only job is to determine whether the very low threshold of probable cause has been passed. Accordingly, I'm not inclined to blame the grand jurors.
The Trial Judge
The next actor with a chance to stop this case from proceeding is the trial court judge in response to a motion to dismiss from Comey. Although Comey has said he welcomes a trial, he and his lawyers might well reconsider that view. A trial will be costly and burdensome, whereas a successful motion to dismiss will be less so.
That is not to say that a motion to dismiss is costless for Comey. Suppose he brings a motion to dismiss on the ground that the charges are politically motivated. Such cases are notoriously difficult to win, although if ever there was such a case, this is as good a record as one can find. Violating longstanding norms, the president exerted enormous pressure on the Justice Department to bring a case against Comey, making no secret of his animosity based on Trump's view that Comey betrayed him by launching the investigation into Russian interference with the 2016 election.
So Comey has a shot at having the charges dismissed for selective/vindictive prosecution. But even if he succeeds before the trial judge, the Fourth Circuit or the Supreme Court could reverse the dismissal, at which point Comey will have secured only delay and expense. If he wants quick vindication, he might be better off insisting on his right to a speedy trial.
Trial and Appeal
The same dynamic applicable to the grand jury applies to the petit jury if and when it is impaneled--except that Comey will not need to rely on nullification. If a one-sided presentation by the prosecutor was unable to persuade 9 out of 23 grand jurors that there was even probable cause to believe Comey committed a crime in his 2020 testimony, how likely is it that the prosecution will be able to satisfy the much more demanding beyond-a-reasonable-doubt standard for all 12 out of 12 jurors at trial?
In the unlikely event that Comey is convicted, he could appeal on the ground that the prosecution presented insufficient evidence, but that's a more difficult standard to satisfy than the beyond-a-reasonable-doubt standard that the jurors themselves apply.
* * *
Those are most of the relevant actors in the legal system proper, but there are two other sets of actors we should not ignore. If any other president in U.S. history had so brazenly attacked our legal system in the way that Trump has--in Comey's case and in numerous other actions--he would have faced bipartisan impeachment and removal proceedings. The fact that Republicans in Congress are not speaking out against the president's use of the justice system to exact personal revenge is appalling.
Appalling, but not surprising. Politicians cater to voters. Gerrymandered House districts, polarization, low turnout in primaries, and the fear that Trump will support a primary challenger ensure that the vast majority of Republicans in the House and Senate take their cue from Trump. The system that allows the minority of Americans who approve of Donald Trump to control all the levers of power in Washington is problematic, but it would be much less so if those supporters were fewer in number. Ultimately, then, responsibility for allowing the Justice Department to be used by Trump to attack the rule of law must rest with the roughly forty percent of Americans who support him despite--or more dispiritingly, in substantial part because--of his authoritarian bullying.
--Michael C. Dorf
Find all the essays in the Wait, Can He Actually Do That? series here.