The indictments of President Donald Trump’s political foes after he publicly called on Attorney General Pam Bondi to prosecute his perceived enemies raise a chilling question: If the Justice Department is little more than a president’s lapdog, is anyone in America ultimately safe from his clutches?
There is one obvious legal defense for former FBI Director James Comey, New York Attorney General Letitia James or anyone else targeted by the Justice Department following Trump’s instruction: claiming vindictive or selective prosecution, which could lead judges to dismiss the cases entirely. Historically, these claims rarely work. But Trump’s behavior is so beyond the pale, it could actually help those he targets.
There’s one group of prosecutors in the United States with extensive experience dealing with claims of selective and vindictive prosecutions — those who worked cases emerging from the Jan. 6, 2021, insurrection at the Capitol. Before Trump pardoned them on his first day back in office, insurrectionists repeatedly and unsuccessfully claimed they were persecuted political prisoners.
Alexis Loeb, a former assistant U.S. attorney, said those claims failed because during her time at the Biden-era Justice Department, there was “zero pressure” from on high to prosecute anyone for the “wrong reasons.”
“If anything,” she said, “What I saw was people making every effort to avoid the appearance of charging people based on animus or their political views, and I think in many instances, you saw the department exercising a lot of discretion to steer clear from conduct that would even suggest that appearance.”
Nowadays, the department appears to be steering right into that conduct with little to no apparent remorse or shame over how anyone outside of the Trump administration’s circle feels about it. The DOJ has secured indictments against James for bank fraud and against Comey for allegedly making false statements to Congress and obstructing justice. (There was a third Trump critic named in Trump’s Sept. 20 Truth social directive to Bondi, Democratic Sen. Adam Schiff of California. His prosecution could come next.)
Could their claims work where those of the Jan. 6 defendants failed? What exactly is vindictive or selective prosecution, anyway? As Loeb explains, a vindictive prosecution is when the government prosecutes you in retaliation for exercising your rights. Selective prosecution is when the government treats you differently than others in a similar situation because you’re part of a disfavored group or have exercised political speech they don’t like.
The bar to prove either is rather high. To even get exculpatory information from the government to pursue those claims, a defendant needs to come forward on their own with some evidence of the vindictive or selective treatment.
“You can’t just make a claim and force the government to turn over their records, of say, internal [DOJ] deliberations that may help you prove it at the end of the day,” Loeb said.
To succeed, a person would need to show evidence of “discriminatory animus” by the government, like proof that the government intended to treat them differently because of who they are or who they associate with, for example.
In court, the government is entitled to something known as the “presumption of regularity,” with public officials presumed to be operating in good faith. As such, U.S. attorneys and DOJ officials are given great deference, especially when it comes to fending off claims of vindictive or selective prosecution. The very idea is antithetical to their sworn oath.
Officials who uphold their oath should be willing to adhere to “basic constitutional principles,” Loeb said, like the notion that “you shouldn’t be charged with a crime because the president doesn’t like you or sees you as an enemy.”
“When prosecutions are driven by loyalty to the president rather than by evidence and law, the very foundation of impartial justice is eroded.”
– Gregg Nunziata, executive director, Society for the Rule of Law
Inside the DOJ, if there is a disagreement about indictments, statutes, disputes, or the treatment of a case, Loeb said, there are “multiple layers of review” that are meant to occur. When prosecuting Jan. 6 cases at the U.S. attorney’s office, for instance, there were at least two supervisors above a person handling a case who could provide substantive input if questions arose. Units inside the Justice Department are expected to act as a self-checking mechanism, too. (The Office of Enforcement Operations at the Justice Department, for example, is a “non-litigating” section of the DOJ’s criminal division that is there expressly to provide investigative and prosecutorial support.)
With the Justice Department under the leadership of a coterie of Trump’s former personal lawyers who do nothing to hide their partisanship, trust in the system is understandably low.
But Loeb isn’t completely pessimistic. There are still judges and juries that can put a check on the Comey and James indictments.
And when it comes to claims of vindictive or selective treatment, the Trump administration’s public commentary and conduct so far seems only to help Comey and James.
“I think that there is a chance of dismissal here given all the public statements suggesting animus against these two as the motivating factor for their prosecution,” Loeb said.
But, as is often the case in the Trump era of American politics and governance, it’s “still not obvious” how this ends up.
That uncertainty has groups like Democracy Defenders doing what they can to flesh out the public record and seek accountability. The nonprofit filed an ethics complaint against interim U.S. Attorney Lindsey Halligan — a former personal lawyer for Trump who had never prosecuted a case before taking her job late last month — in Virginia after Comey was charged, and amended it on Thursday after James was charged, according to a statement from longtime attorney and Democracy Defenders founder Norm Eisen.
“The justice system is being hijacked so the president can settle political scores, and Attorney General Letitia James is the latest target,” Eisen said.
James successfully prosecuted Trump for bank fraud and did her job “without fear or favor … and that’s why she’s in his crosshairs now,” he added.
“Until now, career prosecutors have reportedly declined to indict her because the facts and law don’t support it. But Trump has reshaped the Justice Department in his own image, forcing resignations, firing officials, pressuring prosecutors, and installing loyalists willing to carry out politically motivated prosecutions,” Democracy Defenders said in a statement Thursday.
Over 40 retired judges, including state supreme court justices and superior and circuit court judges from over 15 states, also signed an open letter just days before Comey was arraigned to condemn the Justice Department’s and FBI’s conduct.
“His every threat and every pretextual investigation and prosecution further corrupts America’s democracy and Rule of Law,” the judges wrote.
The Justice Department did not immediately respond to a request for comment to HuffPost on Friday.
The White House did, however, and vowed to “restore integrity to the justice system” while calling it the “ultimate hypocrisy to accuse President Trump” of engaging in “lawfare against his political opponents.”
“The indictment against Comey, by a grand jury, speaks for itself, and the Trump administration looks forward to fair proceedings in the court,” White House spokesperson Abigail Jackson said.
Gregg Nunziata, executive director for the conservative legal group Society for the Rule of Law, told HuffPost Friday that there was no doubt that “ordering indictments of political opponents at the president’s direction is not only a gross violation of norms but a direct threat to constitutional rights and equal protection under the law.”
“The claim that ‘they will have their day in court’ misses the point. In our system, the awesome power of prosecution must never be twisted into a weapon to punish critics or intimidate future dissent,” he said. “When prosecutions are driven by loyalty to the president rather than by evidence and law, the very foundation of impartial justice is eroded. It is imperative that judges and courts act as a bulwark against such abuses. But it is equally important for all Americans — regardless of party — to recognize that the politicization of justice undermines faith in our institutions, chills free speech, and leaves everyone less secure.”