Former FBI Director James Comey was once indicted through a federal grand jury on Sept. 25, 2025 – most effective the second one time in historical past an FBI director has confronted prison fees.
The indictment got here simply 5 days after President Donald Trump took to social media to call for that Comey be prosecuted, and 3 days after Trump put in a former aide because the prosecutor to deliver the case.
Criminal mavens around the political spectrum describe this as an extraordinary political prosecution that breaks elementary democratic norms and mirrors ways utilized by authoritarian leaders international.
As a professor of legislation, I feel Comey’s indictment is momentous as it exams a idea that has safe American democracy for fifty years: Presidents must no longer direct prosecutors to rate their political enemies.
When leaders can abuse the justice machine to focus on critics and investigators, the rule of thumb of legislation collapses.
An unconstitutional indictment
The proof of political interference in Comey’s indictment is strangely robust. Trump waged an eight-year vendetta in opposition to Comey after the FBI investigated Russian interference within the 2016 presidential election.
On Sept. 20, Trump posted on Fact Social tough prosecution: “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell… We can’t delay any longer… JUSTICE MUST BE SERVED, NOW!!!”
After the indictment, Trump referred to as Comey “one of the worst human beings this country has ever been exposed to.”
The 5th Modification protects in opposition to vindictive and selective prosecution. To turn out vindictive prosecution, a defendant will have to display via goal proof that the prosecutor acted with “genuine animus” and that the defendant wouldn’t have been prosecuted excluding for that hostility.
Comey listens to the committee chairman initially of the Senate Intelligence Committee listening to on Capitol Hill on June 8, 2017, in Washington.
AP Picture/Alex Brandon
Because the U.S. Courtroom of Appeals for the 4th Circuit defined in United States v. Wilson in 2001, the federal government can’t prosecute any person to punish them “for doing what the law plainly allows him to do.” When cases create a sensible probability of vindictiveness, the weight shifts to the federal government to justify its behavior.
After Comey’s indictment, Jordan Rubin, a former prosecutor within the Long island D.A.’s place of business, mentioned: “If the Trump administration’s prosecution of James Comey isn’t ‘selective’ and ‘vindictive,’ then those words have lost all meaning.”
Moreover, 3 former White Space ethics counsels – Norman Eisen, Richard Painter and Virginia Canter – wrote to Congress after Comey’s indictment, pronouncing that within the U.S. “a president should never order prosecutions of his enemies. That happens in Putin’s Russia, and it has happened in other dictatorships, but not here. Until now.”
They concluded: “If the Trump administration can do this, then no American is safe from political prosecution.”
Damaged judicial norms
For fifty years because the Watergate scandal that revealed President Richard Nixon’s abuses of energy, American presidents have adopted a core idea: They will have to no longer intervene in choices about who will get investigated or charged, particularly no longer for political causes.
The Justice Division’s handbook comprises the post-Watergate requirement that felony judgments will have to be “impartial and insulated from political influence.”
The 3 former ethics counsels emphasised that all the way through their provider, they “never once saw” Presidents George W. Bush, Barack Obama or Invoice Clinton “suggest that the Department of Justice should prosecute a specific person, much less a political adversary.”
Comey was once indicted on two counts – one depend of constructing a false remark to Congress and one depend of obstruction of a congressional continuing, each in connection along with his testimony earlier than a Senate committee in September 2020.
The allegations in opposition to Comey had been reviewed more than one instances. Particular suggest John Durham tested them all the way through Trump’s first time period. Prosecutors with the U.S. lawyer’s place of business in Washington, D.C., all the way through the Biden management referred to as Comey to testify earlier than a grand jury about allegedly the usage of his good friend Daniel Richman as a conduit to leak data to the click. And profession prosecutors in 2025 underneath former U.S. Legal professional Erik Siebert additionally reviewed the allegations. Everybody declined to rate Comey.
The procedural breakdown unearths how essentially this example violates norms.
Profession prosecutors wrote a memo in September 2025 mentioning they may no longer determine possible purpose to rate Comey. When Siebert refused to continue, Trump got rid of him and put in Lindsey Halligan, Trump’s former non-public protection lawyer. She has no prosecutorial enjoy.
3 days later, Halligan introduced the indictment. She signed it on my own – no profession prosecutors put their names on it, as is in most cases carried out. The grand jury rejected one of the vital 3 fees prosecutors attempted to deliver, a unprecedented sign of susceptible proof.
Comey’s son-in-law, Troy A. Edwards Jr., a federal prosecutor in the similar place of business the place Halligan now works, resigned instantly, mentioning he was once leaving “to uphold my oath to the Constitution.”
Comey was once arraigned on Oct. 8 and pleaded no longer in charge.
Echoes of authoritarians
Prosecuting former police officers who investigated the rustic’s chief isn’t conventional of democracies. This can be a hallmark tactic of authoritarian rulers searching for to consolidate energy.
In Turkey, President Recep Tayyip Erdogan arrested his major political rival in March 2025 on corruption fees that critics name politically motivated. Between 2014 and 2020, Erdogan investigated 160,000 Turks for insulting the president and prosecuted 45,000 of them, together with a 14-year-old boy. Greater than 1,400 folks had been arrested and detained in national protests.
Russia underneath Vladimir Putin supplies the starkest instance. Opposition chief Alexei Navalny was once poisoned through safety services and products, imprisoned on politically motivated fees and in the end died in jail in 2024. Even the legal professionals who defended Navalny confronted prison prosecution.
Russian President Vladimir Putin, proper, and Hungarian Top Minister Viktor Orban attend a joint information convention outdoor Moscow on Feb. 17, 2016.
Maxim Shipenkov/Pool Picture by the use of AP
In Venezuela, President Nicolás Maduro has systematically arrested opposition leaders and compelled critics into exile. Maduro inherited a stacked Ultimate Courtroom from his predecessor, Hugo Chávez, that has systematically nullified opposition regulation. The court docket has additionally orchestrated takeovers of opposition events and authorized Maduro’s fraudulent 2024 election declare regardless of opposition proof appearing it received through a 2-to-1 margin.
And Hungary’s Viktor Orban created the Sovereignty Coverage Place of business with powers to analyze any group or particular person it suspects of receiving overseas reinforce to persuade public existence or the democratic procedure. Orban additionally put in a loyalist leader prosecutor underneath whose place of business “numerous high-profile allegations of corruption have been either quietly shelved or investigated perfunctorily before being dropped,” consistent with EU These days.
The trend is obvious: When leaders can use the justice machine to give protection to themselves, whether or not through prosecuting investigators, refusing to analyze corruption or intimidating the judiciary, democratic establishments erode and the rule of thumb of legislation turns into a device of political keep an eye on quite than a constraint on energy.
What this implies for The usa
Criminal mavens expect Comey shall be acquitted – the proof is susceptible and the political interference is blatant.
However as a student of felony ethics, I imagine the wear and tear is already carried out.
Trump has proven he can pressure prosecutors to rate his enemies. Long run govt officers now face an inconceivable selection: examine robust folks, as Comey did, and chance prosecution, or decline to analyze and make allowance corruption to flourish.
But there could also be a silver lining: When governments spoil norms this openly, they frequently create felony vulnerabilities.
Criminal commentator Ed Whelan has identified that Halligan’s appointment would possibly violate a 1986 Place of business of Criminal Recommend memo authored through then-Deputy Assistant Legal professional Normal Samuel Alito, which concluded that just one meantime U.S. lawyer appointment is allowed underneath the statute. Former meantime U.S. Legal professional Erik Siebert had already served that time period. If Halligan wasn’t validly appointed, the indictment could also be legally void.
The precedent this example units impacts each and every American. As the previous ethics counsels wrote after Comey’s indictment: “No American should have to go through the experience of being prosecuted under these circumstances, and the rest of us should not have to live in fear that it may also happen to us.”
