Why Rule of Law May Pivot, Once Again, on Jim Comey

As of last Tuesday, Jim Comey’s pretrial motions in his seashell case are fully briefed. I wrote about the existence of a sealed filing in them here; I wrote of new signs of abuse exposed in the filings here. Links to all the filings are here. We wait now, to see whether Comey will break new ground in combatting Trump’s wholesale weaponization of DOJ. Comey is the best bet to establish a broader legal standard that might rein in Trump’s worst attempts to politicize DOJ. Where the fight to save rule of law is What Trump has done in his second term is find a series of vulnerabilities in US law and exploit them to give his authoritarianism the patina of legality. The Supreme Court ruled that no one can stop Trump from stealing $1 billion from taxpayers and using it to destroy the White House and replace it with a bunker, because no one has standing. Ras Baraka has no recourse after ICE goons kidnapped him and Trump’s personal lawyer, playacting as US Attorney, lied to excuse it, because Bivens and Westfall offer no recourse. LaMonica McIver is not entitled to speech and debate protection because the tussle that ensued as ICE kidnapped Newark’s Mayor happened while ICE stalled McIver’s congressional oversight of the Delaney facility. These decisions, while understandable from a legal perspective, carry alarming implications going forward, not least that Stephen Miller’s army of goons could kidnap opposition politicians with impunity. Similarly, thus far at least, after prosecutors get caught fabricating cases against Trump’s adversaries, as they did with the Broadview 6, Davey Hearn, and Mohamed Jama, the government maintains that (as with Mayor Baraka), the victims get no recourse except legal fees, if even that. They don’t get visibility into how this happened, a confession the DHS or NPS goons fabricated their case, and discovery on how Trump’s DOJ keeps framing his adversaries only to have the case collapse after months of legal fees. DOJ argues they can keep doing this, over and over and over again. There are cases (most notably the Eric Adams case, the fake IRS settlement, the Guatam Adani case, and the unexpected refusal by Carl Nichols to dismiss the Steve Bannon prosecution) where judges are refusing to let DOJ corruptly dismiss cases without explaining their own corruption. Victims who have been framed by Trump’s DOJ are still trying to obtain some kind of justice for having been framed. That’s why Jim Comey’s bid to dismiss his second (of what is likely to be at least three) indictments Trump ordered up to make an example of the former FBI Director, the guy who refused to “let [rule of law] go” at Trump’s bidding back on February 14, 2017, matters. Selective prosecution is not a tool fit to combat Trump’s wholesale weaponization of DOJ Trump is trying — indeed, has had some success — in hiding behind the shitty precedents on politicized prosecution to repurpose DOJ to punish his adversaries. For example, his and Republicans’ bid to prosecute Hunter Biden off of a doctored gun purchase form and the kind of tax dodging Roger Stone also engaged in succeeded because two (Trump-appointed) judges said that the direct intervention from the President didn’t matter; all that mattered was the motive of the prosecutors who made the charging decisions. That success continued to the prosecution of the SPLC. That success did not extend to Kilmar Abrego, an undocumented Salvadoran immigrant whose courage inspired citizens to fight back; Abrego did succeed (at least for now — Trump is appealing) in arguing his prosecution was vindictive. Important legal precedents don’t necessarily arise in the cases of people you’d otherwise recognize as heroes. Comey is attempting to do something somewhat more ambitious than even Abrego’s attorneys managed — to pin a selective prosecution claim to Trump’s animus itself, a claim that is at once obvious but also unprecedented in the narrow existing precedents of selective prosecution. Comey’s first attempt at making this argument in EDVA (MTD, response, reply) last year was never adjudicated. Lindsey Halligan’s disqualification mooted that argument and her apparent failure to actually get an indictment would have destroyed the investigation next. This attempt is substantially the same, bolstered by even more ridiculous charges and even more abuse to get them. But, coming as it does ten more months into Trump’s authoritarian rampage, it comes amid a more ambitious statement of the unitary executive. And behind all that — as US Attorney Andrew Boutros made explicit in the Broadview 6 case — is a new theory of power, based in SCOTUS’ Trump v. US opinion: not just that the President can order up general and specific prosecutions, but because SCOTUS sanctioned that power, defendants can’t scrutinize Trump’s role in that process. And that’s why Jim Comey’s bid to dismiss his prosecution for the way Trump ordered it up matters. To be sure, no judge has endorsed Boutros’ alarming theory. But that theory is likely to be first scrutinized in Comey’s case (the Broadview 6 have delayed their filing on what should happen twice; it is currently due on September 15). Jim Comey has a ridiculously easy claim that Trump weaponized all of DOJ against him That’s true because ten years of mean tweets document Trump’s fury that Jim Comey refused to drop the investigation into why Trump’s National Security Adviser was trying to undermine sanctions imposed in response to Russia’s election assistance for Trump. That catalog has gotten 17 pages longer in just the 11 months since Trump first charged Comey! As Comey’s initial brief notes, there’s no question why this happened. The current record shows a clear causal link between President Trump’s animus and the prosecution of Mr. Comey. This is thus the rare case in which a defendant can “prove an improper motive” and a causal connection “with direct evidence.” Wilson, 262 F.3d at 314. Accordingly, Mr. Comey has established that his prosecution “was motivated by actual vindictiveness,” and the indictment must be dismissed. Id. at 316. It is breathtaking how explicitly the campaign against Comey is an effort to criminalize any effort to protect the US against Russian interference. Plus, with Comey, the flopsweat desperation of actually charging him in the seashells case — the Secret Service’s attempt to retroactively declare 8647 a threat until it became clear how common the phrase was, the illegal surveillance followed by the seemingly deliberate snooping in Comey’s privileged communications, the increasingly long chain of attorneys hired and fired just to find people willing to criminalize posting a picture of seashells — all of that demonstrates how the effort to make an example of Jim Comey has corrupted DOJ from top to bottom. Moreover, federal officials acted irregularly across the course of this investigation. Immediately after Mr. Comey’s post, the Secret Service changed its policy to newly treat “86 47” as a threat; Secret Service agents were also ordered to conduct unlawful surveillance of Mr. Comey and share their interview notes with the President. See supra pp. 8-9. When the Secret Service declined to open a full investigation, the DOJ instructed the FBI to pick up the baton, which Director Patel eagerly did. See supra p. 10. The FBI acted irregularly, too. When the FBI applied for search warrants in March and May 2026—long after the social media post—those applications distorted the facts of the case. See Concurrently Filed Mot. to Suppress & Memo. in Support. The government also failed to install effective screens for attorney-client privilege, resulting in the seizure of communications between Mr. Comey and two of his longstanding attorneys. See Fitzgerald Aff. ¶ 40. The suspect timing and conduct of this prosecution—and the events that catalyzed it—support the conclusion that some motive besides legitimate prosecutorial interests drove the decision. Here, the inference is clear: the newly installed political officials in the DOJ strove to accomplish what their predecessors could not, namely, effectuating the President’s desire to punish Mr. Comey. Even just having a judge write a memo laying out that this is wrong would be an important step in reining in DOJ. But Comey, if his small law firm of exceptionally good lawyers is successful, could do more. How to use unitary executive against weaponization As I’ve alluded, the existing precedents on politicized prosecution suck. The decisions of three Trump-appointed judges that Trump’s explicit intervention in criminal cases did not make them unlawful — Maryellen Noreika in Hunter’s Delaware gun case, Mark Scarsi in Hunter’s Los Angeles tax case, and Emily Coody Marks in SPLC — were not outliers. To change that for others you’re going to need to go back to first principles: that wielding DOJ as a weapon the way Trump has is a violation of due process and equal protection. That’s how Comey’s motion to dismiss (as with his earlier one submitted in EDVA) starts: by arguing this goes back to basic constitutional principles. The indictment must be dismissed under two bedrock legal doctrines. First, the government instigated this prosecution based on Mr. Comey’s protected speech and to vindicate the President’s animus towards Mr. Comey, in violation of First Amendment and due process principles. Second, the government engaged in selective prosecution, in violation of equal protection principles. Dismissal of federal criminal charges under these doctrines has historically been rare. That is because for decades the DOJ’s independence and integrity have guarded against the use of the criminal process to punish enemies or settle political scores. The prosecutions of Mr. Comey mark a sharp break from that tradition. Ample objective evidence—much of which comes directly from government officials’ own public statements and admissions—establishes that the President’s animus toward Mr. Comey led to this vindictive and selective prosecution. The proper remedy for the government’s constitutional violations is a dismissal with prejudice. But at the very least, the Court should allow for discovery and an evidentiary hearing into the government’s decision-making process. And it should require the government to present objective evidence justifying this prosecution This initial MTD, though, only obliquely addresses how this fits into Trump’s efforts to expand the unitary executive in the interim. It mostly shows up as a footnote citing Judge Kathleen Williams’ opinion on the IRS case. [T]he President—the head of the Executive Branch and U.S. Attorney Boyle’s ultimate supervisor— instigated a retaliatory prosecution against Mr. Comey that would otherwise not have been brought.5 5 A district court recently noted the unusual “influence over the DOJ” wielded by President Trump, Trump v. IRS, 2026 WL 2015525, at *12 (S.D. Fla. July 13, 2026), citing a statement by DOJ leadership to U.S. Attorneys nationwide that “the President is the Department’s ‘chief client.’” Id. at 12 n.35 (citation omitted). But DOJ’s response makes the problem explicit. In two consecutive paragraphs, Ellis Boyle both asserts that Trump can fire anyone (citing Slaughter), but in the next paragraph, claims that the only thing that matters is what Trump’s subordinates — who will be fired if they don’t do what they know Trump wants — act as prosecutors when they implement Trump’s demands. Comey’s reliance on a social media post directed to former Attorney General Pam Bondi is even further afield. See id. at 12. As Comey elsewhere acknowledges, Bondi was not Attorney General when Comey was charged. Id. at 15. There is no evidence beyond media speculation that the President directed then-Acting Attorney General Blanche, let alone the actual prosecutorial decisionmaker (U.S. Attorney Boyle), to prosecute Comey in EDNC. And even if there were, the Chief Executive directing his subordinates to exercise core Executive functions is a feature, not a bug, of our constitutional system. The purported “independence” of DOJ that Comey cites, DE 36 at 2, is antithetical to the constitutional separation of powers (which lodges the Executive power in the President alone). See Trump v. Slaughter, 146 S. Ct. 2283, 2303 (2026). And as a matter of historical analysis, it is a myth. See, e.g., John F. Kennedy Presidential Library and Museum, Robert Kennedy’s Attorney General Office (discussing “President Kennedy’s appointment of his 35-year-old brother . . . as the Attorney General”). But none of that matters. As discussed in more detail below, the test for vindictive or selective prosecution is not whether the Chief Executive has an influence on the prosecutorial decisions of his subordinates (as the Constitution plainly contemplates). It is, rather, whether those prosecutors have exercised their power within the constraints of the Due Process and Equal Protection Clauses. Comey’s misleading narrative should not distract from the fact he cannot come close to showing any violation. This is the problem!! If Trump can fire anyone who refuses to indict Comey (as he did, effectively, by forcing Erik Seibert to resign in EDVA, still leaving the departures of AUSAs Gabriel Diaz and Nate Lemons in EDNC unexplained), then Ellis Boyle’s claims he personally has no animus to Comey are meaningless. That’s, effectively, what Comey argues in his reply brief, first citing an article from Jack Goldsmith responding to DOJ’s response posted just days before Comey’s reply was due (and, curiously, reposted at American Enterprise Institute’s site). The government “cannot have it both ways” by at once asserting “extreme unitariness” and rejecting DOJ’s traditional independence while insisting DOJ prosecutors act “uninfluenced by the president’s vindictive commands.” Jack Goldsmith, The Unitary Executive and Comey’s Vindictive Prosecution Claim, Exec. Functions (Aug. 28, 2026), https://perma.cc/E6S3-MDM4. If accepted, the government’s position would immunize vindictive prosecutions that flow from the President through subordinates who have been tasked with carrying out his bidding. Goldsmith’s post argues that Boyle literally has no choice but to indict Comey. But given the wishes of the president, the acknowledged absence of DOJ independence, and the formal and functional orders to follow the president’s will on pain of firing, Boyle had no lawful or practical choice. He was bound to execute the president’s vindictive wishes. He had to find a way to prosecute Comey, at least if he wanted to keep his job. I can put the point another way. The two sides dispute Fourth Circuit and other circuit precedent on whether and when vindictiveness can be shown by proving that the charging prosecutor was influenced by a superior. I won’t get into those legal weeds here, since this case is unique. Any legal hurdle to inferring the vindictiveness of this charging prosecutor from the vindictiveness of this president should be lowered, if not eliminated, by the Trump administration’s unprecedentedly extreme claims of unitariness. The Trump administration cannot have it both ways. It cannot claim extreme unitariness and fire people for failing to follow the president’s demand to indict enemies, on the one hand, and then claim, on the other, that the prosecutor in the Comey case made an independent decision to prosecute, uninfluenced by the president’s vindictive commands. I would dispute that this case is unique — prosecutors are being fired across the country for refusing to implement Trump’s priorities (and, obviously, even an undocumented immigrant from El Salvador managed to make the case, in part because one AUSA was fired and another left in protest over his treatment). It’s just that the reasons and the decade-long animus is so uniquely embodied in Comey’s case. Which, finally, after Comey’s initial MTD cited Judge Kathleen Williams in the IRS case, and DOJ’s response cited Slaughter, leads to the premise behind all of this, John Roberts’ approval of Trump’s personal interference in specific prosecutions, which Comey cites in his reply. Accordingly, Mr. Boyle’s blanket assurance (at Dkt. 53-1 ¶ 13) that he “did not feel pressured, coerced, or motivated” to indict Mr. Comey does not advance the government’s position. See Abrego-Garcia, 833 F. Supp. 3d at 834-35 (declining to credit such “good faith explanations” from Acting U.S. Attorney, that he “made the decision on whether to seek an indictment” and “received no direction from anyone at the White House” or DOJ).4 Such a subjective assessment also cannot be relevant where, as here, the animus belongs to the President—who has wielded his “exclusive authority over the investigative and prosecutorial functions of the Justice Department,” Trump v. United States, 603 U.S. 593, 621 (2024), including by forcing the resignation of a U.S. Attorney who refused to indict Mr. Comey, Mot. 12. Cf. P.H.E., 965 F.2d at 859-60 (court must dismiss a vindictive “a prosecution [that] is premised on the fruits of constitutionally tainted behavior, . . . notwithstanding attempts to launder the taint by presenting the fruits to an independent prosecutor” asserting good faith). After all, “cases do not magically appear on the desks of prosecutors,” and this case is no exception. United States v. Abrego Garcia, 807 F. Supp. 3d 827, 830 (M.D. Tenn. 2025) (ordering government to produce discovery). If the role of the President in prosecutions — both individual and systematic — changed thanks to Trump v. US, then the doctrine on selective and vindictive prosecution must also change. Trump’s animus and whims are implicated in every single DOJ prosecutorial decision. None more so than with Comey. So this dispute matters to all of us. Judges prefer to rule on technicalities before applying new precedents To be sure, there’s no guarantee that Judge Louise Flanagan, appointed by the same President, George W Bush, who first appointed Comey to a senior DOJ position, will take the courageous step of ruling against the government. Something else could end this case, as Lindsey Halligan’s unlawful appointment did in EDVA. Judge Flanagan could dismiss this case on Comey’s argument, which is equally compelling, that his seashell post was not a true threat. She could, separately, grant his motion for a hearing to figure out why FBI Agent April Floyd rushed to get warrants she didn’t read before presenting her case to the jury, a rush that buried exculpatory information. That might lead to dismissal via other means. Judge Flanagan could deny the request, assuming a jury or the appeals process and delay will keep Comey out of jail. If those things happen, Comey will be making the same argument in a few months, likely before Aileen Cannon, who is guaranteed to bow to Trump’s demands (after she refuses to move any case against Comey to DC, where it would belong). We all would be better served if Judge Flanagan has the courage to do what’s needed here. The need to champion the rights of this defendant, of all defendants, personally targeted by a President abusing his prosecutorial role won’t go away though. And there will likely never be a case in which the misuse of DOJ’s authority against Trump’s adversaries is so blatant, so deliberately pathetic in criminalizing a post of seashells. Trump has destroyed so much else with bulldozers and boy bureaucrats. But thus far, his attempt to criminalize his opponents has had to go through juries and judicial review. We’re at a moment now, with Comey but not just with Comey, where we’re looking for tools to reverse that before Trump further packs the court or finds ways around them. 0 Comments