Scott Gurvey's Public Offerings

A former Director of the Federal Bureau of Investigation has been indicted on the direct order of the President of the United States.

Let that sink in. I’m sure that this thing happens all the time in Russia. Or China. Or North Korea. Or Iran. But I can’t think of anything comparable ever happening in the United States of America.

I was in college during Watergate. And I’ve studied enough American history to know that the Department of Justice, and its Federal Bureau of Investigation have been politicized before. I have also seen prosecutors at all levels use the power of their office to attack political foes. But I know of nothing which comes close to the blatant abuse of the prosecutorial power of the federal government as that unleashed by Donald Trump and his loyal minions in the DOJ in indicting former FBI Director James Comey.

Donald Trump hates James Comey. I’ve never understood the reason. In fact, I’ve always blamed Comey for Trump’s victory in 2016, when he beat Hilary Clinton. Just weeks before the election, in violation of DOJ rules, Comey announced the reopening of an investigation into Clinton’s handling of classified information when she was Secretary of State. A week later, Comey announced that no wrongdoing had been found and that the investigation was closed. I observed a swing of undecided voters to Trump after Comey’s improper announcement. There was no reverse movement when Comey issued his second notice. The person who should hate Comey is Hillary Clinton. I would think Trump would love him.

In his post, Trump charges, tries, and convicts Comey. And he does the same to Senator Adam Schiff and New York Attorney General Letitia James. Here Trump exhorts Pat Bondi, now Attorney General of the United States, to act against the people who “impeached me twice” and “indicted me (5 times).” There is also a reference that complains, “we almost put in a Democrat supported U.S. Attorney, in Virginia…. I fired him…. Lindsey is a really good lawyer, and likes you, a lot. We can’t delay any longer….”

This is Trump openly admitting what he has done. He admitted firing “a Democrat supported U.S. Attorney.” That would be Erik Siebert, who Trump had nominated for U.S. Attorney for the Eastern District of Virginia. Siebert was a career professional who joined the Eastern District in 2010. Siebert had reportedly reviewed at length the case against Comey and concluded that there was insufficient evidence to support an indictment.

“Lindsey” in Trump’s post refers to Lindsey Halligan, a former insurance lawyer with no experience as a criminal prosecutor who Trump appointed to replace Siebert.

ABC News reported, “The prosecutors earlier this week summarized their findings — that probable cause does not exist to secure an indictment, let alone a conviction at trial — in a detailed declination memo for Lindsey Halligan, President Donald Trump’s newly appointed U.S. attorney for the Eastern District of Virginia, sources said.” Still, Halligan reported for work at the Eastern District in Alexandria, Virginia on a Monday and by 7pm on Thursday had reviewed the case and the evidence and submitted her finding to a grand jury. The jury voted to charge Comey.

There was some confusion in the courtroom when Halligan presented the jury’s indictment to Judge Lindsey Vaala, who appeared puzzled by the multiple charging documents filed for one case. Vaala asked why there were two documents in the same case. Halligan told her, “I did not see it,” to which Vaala replied, “It has your signature on it.” Vaala then had Halligan make handwritten changes to one of the documents and said both documents would be uploaded to the docket for the record.

It’s rare to see only the name of the U.S. attorney, in this case Halligan, on the docket and only her signature on the indictment. Usually there are several assistant U.S. attorneys listed, not just the U.S. attorney. The Washington Post reported that “Halligan … personally presented the case against Comey to the grand jury

Federal grand juries are made up of 16 to 23 members, and at least twelve jurors must concur to issue an indictment. Grand juries hear only the prosecutor’s case, the defense does not appear. The jury only decides if there is “probable cause” for an indictment and criminal trial. The prosecutors almost always get what they ask for. Grand jury votes are usually unanimous.

The phrase, “a grand jury could indict a ham sandwich” was appropriately coined by Sol Wachtler when he was Chief Judge of the New York Court of Appeals. He made the comment in 1985 to highlight the influence of district attorneys on grand juries, suggesting he could easily get indictments without much opposition.

This perversion of the framer’s grand jury vision is nothing new (see Fifth Amendment). I wrote a paper titled “Torture of the Grand Jury Process” fifty years ago while in graduate school. Grand jurors and trial jurors, known as petit jurors, often do not understand they are free to make any decision they want while considering a case, regardless of the instructions they receive.

The Comey grand jury issued its two count indictment with a bare majority of 14 votes. And it rejected Halligan’s request for a third count, another charge of lying to Congress.

Other problems identified in Halligan’s initial filings, including duplicate case numbers and clerical errors and misspellings in official documents that have been flagged on social media. A widely shared post on X said she “doesn’t know the difference between a bedrock principle and a bedrock ‘principal’.”

The rush to prosecute Mr. Comey is the clearest example yet of how the normal process of justice has been reversed under Trump. He never tried to hide his plans. He came into his second term with targets already in mind. Comey is just his first shot.

For his second term Trump recruited Justice Department officials who share his sense of persecution. He is also emboldened by a Supreme Court ruling granting him a broad form of immunity from prosecution. He has laid waste to the post-Watergate norms that for decades have kept presidents from intervening directly in the affairs of the Justice Department.

Trump’s Justice Department has summarily fired dozens of prosecutors and agents who worked on the criminal cases that he faced while he was out of office. He has often used those cases as a justification for seeking retributive prosecutions not only against Mr. Comey, but also against other opponents like Ms. James, who pursued a civil case against him in New York, and Mr. Schiff, who while serving in the House led impeachment hearings against him.

We are seeing the almost wholesale collapse of the Justice Department as an organization based on the rule of law. Rest in Peace DOJ.

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