Former federal prosecutor Elie Honig weighs in:
Let’s start with the indictment itself, and whatever little can be discerned from it. We’ve got two counts — the grand jury reportedly rejected a third — both based on Comey’s testimony to the Senate in September 2020. Count one alleges that Comey testified falsely and count two charges that, by giving that false testimony, he obstructed a congressional proceeding. According to the indictment, Comey testified that he had not authorized anyone else at the FBI to leak information to the media, when in fact he had done so.
And that … is it. The whole charging document runs less than two full pages, and the core allegations take up just a couple dozen words. The very purpose of an indictment is to notify a defendant of the charges against him, with reasonable specificity. So much for that quaint notion.
While he doesn’t think this payback prosecution has much chance of success, it nonetheless “marks a dark turn”:
Watch for Comey’s team to move quickly to dismiss the indictment based on a claim of selective prosecution. They’ll argue, in essence, that he was singled out for prosecution for political or other improper purposes. Defendants often raise this claim but rarely win. The problem is that it’s typically difficult or impossible to prove that the government had some impermissible motive; conversations about targeting tend to happen in hushed tones behind closed doors, if at all.
But that’s not how Donald Trump operates. For this president, everything is broadcast to the world, live and unfiltered, over social media. Accordingly, Trump already has given Comey exhibit A in his forthcoming motion to dismiss: a September 20 Truth Social post in which the president openly exhorted his attorney general (“Pam;,” the missive opens) to indict Comey and other favorite targets for political retribution. “What about Comey, Adam ‘Shifty’ Schiff, Leticia???” the president wrote. “They’re all guilty as hell, but nothing is going to be done.” After some stream-of-consciousness rambling, Trump ended his diatribe with an instruction to his Justice Department: “JUSTICE MUST BE SERVED, NOW!!! President DJT.” It’s difficult to imagine a more straightforward case of selective prosecution. Don’t be surprised if a judge throws this mess out before it ever reaches a jury.
This prosecution marks a dark turn. During his first term, Trump was full of public bluster, openly pining for criminal prosecutions of Hillary Clinton, Barack Obama, Joe Biden, John Kerry, and, yes, Jim Comey. But it was all chatter, back then; DoJ and other leaders mostly ignored the president’s rants and waited for the tempest to pass.
But now the fanciful talk has become action, and Comey — once a revered federal prosecutor who took down international terrorists and New York gangsters — will find himself sitting at a defendant’s table and facing the prospect of his own imprisonment. Unlikely as it seems that Comey gets convicted and sentenced to prison, nobody can afford to be nonchalant about a federal indictment filed by prosecutors representing the United States of America.
Read the rest here.
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