America Isn’t Supposed to Have Political Prosecutions

Legal filings submitted by James Comey this week argue that the Trump administration has subjected the former FBI director to a vindictive and meritless prosecution. What stands out is how little effort the president put into pretending this is not the case.

President Trump first branded Comey a criminal more than eight years ago. In 2017, he took the then-shocking step of firing Comey before the expiration of his 10-year term. The following year, Trump wrote a Twitter post claiming, “James Comey is a proven LEAKER & LIAR. Virtually everyone in Washington thought he should be fired for the terrible job he did—until he was, in fact, fired. He leaked CLASSIFIED information, for which he should be prosecuted.”

Hampered by career public servants and political appointees who followed traditional democratic norms (refusing to prosecute people merely because the president hates them), Trump was unable to make good on this threat and settled mostly for tweeting out demands that Comey be imprisoned. During his second term, however, Trump has sought to bring criminal charges against apparently anybody who defies or displeases him. He has flexed this power by repeating his claims that Comey was a “dirty cop” who deserved prison, ordering the Justice Department to charge him with crimes, and orchestrating the entire plot in public view.

[Quinta Jurecic: The Comey indictment is an embarrassment]

Last year, Trump reportedly pressured the Justice Department to charge Comey. When the U.S. attorney for the Eastern District of Virginia, Erik Siebert, resigned rather than bring a meritless case, Trump’s Justice Department replaced him with Lindsey Halligan, an inexperienced Trump loyalist, who brought an indictment for lying to Congress (an allegation that was different from his first-term claims that Comey had leaked classified material). It was shortly dismissed when a judge found that Halligan had been unlawfully appointed.

Trump ordered Attorney General Pam Bondi to bring new charges and fired her for, among other reasons, failing to accomplish the task. He then replaced Bondi with another loyalist, acting Attorney General Todd Blanche, who duly produced another indictment, this time for the “crime” of threatening the president’s life by posting an Instagram photo of seashells on the beach spelling out “86 47.” Trump showed Blanche the man, and Blanche found the crime.

When Comey’s message appeared, Trump’s supporters depicted it as an endorsement of his murder, rather than his removal. Comey immediately clarified his intentions and removed the post, stating he opposes political violence. Trump has nevertheless insisted that “86,” a restaurant shorthand for canceling an order or ejecting a customer that has taken on a general meaning “to get rid of or discard,” must imply a call for presidential assassination.

Even if this implausible interpretation were correct, Comey’s message would not be a crime. Under the Supreme Court’s long-standing interpretation of the First Amendment, advocating violence against a public official, though morally reprehensible, is protected speech, as long as it does not constitute a specific incitement to immediate action. That is one reason that Trump’s January 6, 2021, speech urging an angry and armed crowd to “fight like hell” to overturn the election result could not be prosecuted.

The current charge against Comey, in short, relies on a tendentious interpretation of an innocuous term combined with a disregard for the First Amendment in order to gin up charges against a man Trump has been targeting openly for nearly a decade.

Although Trump has done little to disguise his intentions, it would be untrue to say he put zero effort into the pretense. He did attempt to keep one of his instructions to Bondi private—a September 20, 2025, message on Truth Social to his then–attorney general stating: “Pam: I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done,” and concluding, “We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”

However, Trump mistakenly posted this direct message to his public account, making it visible to all of his followers.

[Quinta Jurecic: The ‘presumption of regularity’ is evaporating]

Trump’s incompetence throughout this vendetta against Comey is perhaps its most welcome aspect. The episode reveals the formidable powers available to a president to target his enemies. Comey’s filing alleges that, in addition to Trump’s previously known directives to the Justice Department to prosecute his target, the president used the Secret Service to investigate him.

The agency, which is charged with protecting the president, not only began following Comey, but tracked his location through his phone. This step legally requires law enforcement to believe there is “an imminent threat to life or limb,” which Comey’s retracted seashell message obviously did not constitute.

One Secret Service official wrote in a memo, MS NOW reports, “At the time we did not believe anyone’s life was in danger and legally it was a bad idea.” But after a top Justice Department official demanded this action, the Secret Service relented. The difference between security agencies in democracies and secret-police forces is that the former have to obey laws and not just follow the whims of the head of state. The Secret Service’s actual procedures turn out to be more like guidelines that can be discarded if the president is sufficiently angry—which, from the standpoint of safeguarding democracy, constitutes a fairly concerning loophole.

Not for the first time, the president’s clumsiness is likely to negate his malevolence, though not without considerable cost, in time and money, to Comey. Yet Trump’s incompetence is also unsettling. This president may be succeeded by someone who equals Trump in his eagerness to wield the office’s powers and in his lack of scruples, but exceeds him in intelligence and discipline. Future plots to imprison a critic of the MAGA movement might not be undermined by a loudmouth president who can’t help but give away the scheme.