Donald Trump May Have Already Sabotaged His Own DOJ Revenge Tour

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Donald Trump is in the habit of saying the quiet part out loud. Sometimes, he does it even when he doesn’t mean to. On a recent Saturday night in September, the president took to Truth Social and demanded that Attorney General Pam Bondi order the Justice Department to prosecute three of his most reviled enemies: New York Attorney General Letitia James, former FBI Director James Comey, and California Sen. Adam Schiff. “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!!!”

Quickly, it became clear that the public post was an error^[2]—meant as a private message to Bondi. The president followed up, awkwardly: “Pam Bondi is doing a GREAT job as Attorney General of the United States.” Nothing to see here, folks.

Now, three weeks later, two out of three of Trump’s targets on the post have been indicted. But the president’s accidental public posting may have real consequences for the Justice Department’s efforts to prosecute James and Comey, as well as for those further down his list, starting with Schiff. By making his intentions so undeniably clear, Trump has taken ownership of the indictments and created an opportunity for the defendants, and the courts, to set some much-needed boundaries around politically motivated prosecutions.

Securing James’ and Comey’s indictments required upending the U.S. attorney’s office in Virginia, forcing out the U.S. attorney whom Trump himself had picked for the job only months before. Erik Siebert was fired (or did he resign^[3]?) after he told senior DOJ officials he didn’t think there was enough evidence to proceed with the case against Comey. His replacement, 36-year-old Lindsey Halligan, is Trump’s former personal lawyer and has no prosecutorial experience^[4]. Halligan has done what her predecessor would not, going alone, before the grand jury^[5] during her first day on the job, to seek charges against Comey, after all the other lawyers in the office refused to go with her. Two weeks later, she was back before the grand jury, this time to indict James^[6].

Experts have characterized both indictments as deeply flawed^[7] and weak^[8]. Comey is accused of lying to Congress in a charging document that does not specify what, exactly, he lied about. James is charged with bank fraud, accused of lying on a loan application, claiming that a home she bought in Virginia was a second residence, when in reality, she treated it as an investment property and rented it out. But as it turns out, James has been allowing her grandniece to stay there^[9] with her family rent free, making it difficult for the government to prove that James ever intended the property to be a rental.

Which brings us to the next stage of the proceedings: Comey’s attorneys have already announced their intention to move to dismiss the charges against him for vindictive or selective prosecution. To win, he must prove one or both of the following claims^[10]: either 1) that the United States harbored animus (hostility or ill will) toward him or 2) that he would not have been charged but for that animus; or 1) that he has been singled out for prosecution from similarly situated people who were not charged and 2) that the government did so for discriminatory reasons, because either he is a member of a protected class or he exercised his constitutional rights.

These standards sound simple enough, but defendants almost never win^[11] these motions. Judges are usually loath to question prosecutors’ charging decisions—it is, after all, the prosecutor’s job to decide whom to charge and with what—and judges will intervene only in extraordinary circumstances. The law maintains that the government is entitled to “the presumption of regularity^[12]” when defendants raise allegations like these. This means that the judge must start with the baseline assumption that prosecutors behaved lawfully and consistently in discharging its duties. The defendant bears the considerable burden of proving that the government singled them out and acted with discriminatory intent, or that the charges are a result of animus and would not otherwise have been pursued.

To understand why these motions are usually so difficult for defendants to win, consider the most recent public figure to file a motion to dismiss for selective and vindictive prosecution: Hunter Biden. Biden claimed that his prosecution for illegal possession of a gun was selective and motivated by a desire to make the Biden family look bad. He didn’t claim that prosecutors felt particular animus toward him specifically, but he alleged that they intended to use him as a tool to hurt his father, who was then the president of the United States.

The charges against Biden revolved around an application that he had filled out when he bought a gun in Delaware in 2018. Biden had lied on his paperwork^[14], checking a box to assert that he had no substance-abuse issues, even though he was at the time using drugs regularly. Eleven days after buying the firearm, Biden disposed of it in a public trash can.

The case against Hunter Biden was certainly unusual^[15], and his attorneys presented several legal experts who opined that another person who had acted as Biden had would not have been charged. The defense team also quoted from a New York Times story^[16] that claimed that the special prosecutor, David Weiss, had acknowledged privately that “the average American” would not have been subjected to prosecution for Biden’s actions. But Weiss vehemently denied making the comment, and the court assumed he was telling the truth, choosing to look no further into the government’s motives. Because of the presumption of regularity, the judge assumed Weiss’ good faith. Biden could not overcome the presumption because an anonymous source—and a contradicted one—was not enough to prove that the prosecutors had acted with discriminatory intent. Biden also struggled to prove that he was a member of a protected class, or that his prosecution was somehow the result of his exercise of a constitutional right.

But the James and Comey cases are different: They don’t have to rely on anonymous quotes in the media. Instead, they have the words of the commander in chief publicly confessing his animus toward them both and instructing the attorney general to find something to prosecute them for. This is the sort of direct evidence of animus and selectivity that defense attorneys dream of. The president’s public post explodes the presumption of regularity that the DOJ would normally be afforded.

Trump’s Truth Social post is not the only evidence of selective and vindictive prosecution. There is the history of animosity between Trump and both James^[21] and Comey^[22]. There is the sudden departure of the sitting U.S. attorney^[23], shortly after it was reported that he told DOJ officials he could not make a case strong enough to prosecute the two. There is the temporary appointment of Halligan, who, despite her inexperience, had to go before the grand jury alone because her new employees wouldn’t touch the case. And there is the shoddy nature of the indictments themselves, which don’t pass the smell test. But without Trump’s post, all of this might not have been enough, given that the court must presume the government’s good intentions. However, the Truth Social post is direct evidence that the president ordered the attorney general to indict his enemies, regardless of the strength of the evidence against them.

The prosecutions of James and Comey present another critical set of tests for our legal system. If federal prosecutors succeed in pushing these cases to trial, then Trump may be more likely to attempt this particular tactic—prosecuting those who challenge him—in the future. The result of Comey’s motion to dismiss will matter tremendously, not just to Comey and James, but to whoever is next on Trump’s, or any future president’s, list of enemies. Trump’s post, an unforced error, provides the courts with a path to set some much-needed boundaries around politically motivated prosecutions. Let’s hope they take the opportunity before Trump gets any further down his list.

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