Former FBI Director James Comey was indicted Thursday. The news came just days after President Donald Trump forced out a US attorney who declined to bring such charges, publicly pushed for prosecutions of Comey and other political foes, and installed a loyalist who quickly gave him what he wanted.
It’s a remarkable breach of Justice Department norms that say a president isn’t supposed to involve themselves in prosecutions – particularly those in which they have a political interest.
But this breach has been met on many portions of the right by shrugs. The prevailing argument is some version of: “Well, Joe Biden started it.”
Trump on Friday said he expected more indictments of his perceived political enemies, while adding as an apparent justification: “They weaponized the Justice Department like nobody in history.”
Yet there are very important differences between the Comey indictment and the Biden Justice Department’s handling of Trump.
Whatever one thinks of the decisions to indict a then-former president, this is a major escalation in Trump’s ongoing politicization of the justice system and broader weaponization of the government.
President Donald Trump speaks to the media before departing the White House on Friday. – Jonathan Ernst/Reuters
The role of the president
The biggest difference is in the roles the presidents themselves played.
In Trump’s case, he publicly stated that he wanted the prosecution of Comey, whom he’s said was guilty of crimes, and he took actions to make that a reality – first by forcing out a US attorney who had concerns about the evidence for some of the charges he was being pressured to bring against Trump’s enemies (notably those related to New York Attorney General Letitia James.)
“Yeah, I want him out, yeah,” Trump said last Friday, shortly before US Attorney Erik Siebert resigned.
Trump followed that up the next day by naming Comey and others he’s accused of crimes and urging Attorney General Pam Bondi to act faster: “We can’t delay any longer, it’s killing our reputation and credibility.”
CNN has reported that Bondi had reservations about the Comey case. (She denies this, telling CNN, “That is a flat out lie.”)
But the case has now been brought.
And crucially, it looks like Trump’s pressure made it happen; the statute of limitations on Comey’s alleged perjury was set to expire on Tuesday.
Former FBI Director James Comey takes his seat after being sworn in during a Senate Intelligence Committee hearing on Capitol Hill, on June 8, 2017. – Alex Brandon/AP/File
Trump clearly played a much bigger role in Comey’s indictment than any of the evidence suggests Biden did in Trump’s indictments.
That doesn’t mean Biden was faultless. He occasionally commented on ongoing criminal investigations – including Trump’s – in apparent violation of Justice Department norms. He at one point advocated for prosecuting people who defied the House January 6 committee’s subpoenas, charges that were later brought against Trump advisers Steve Bannon and Peter Navarro. The New York Times reported in 2022 that Biden had privately expressed frustration that Trump hadn’t been charged.
But there is no real evidence that Biden played a role in the decisions to indict Trump or even that his pressure impacted them.
The charges were brought by a special counsel that was independent even of Biden’s appointed attorney general, Merrick Garland. Both said they did not feel pressure from Biden.
And the Democratic president did not repeatedly push for the prosecutions of his enemies in public, as Trump has. He didn’t celebrate the charges against Trump, as Trump did after Comey’s indictment. And crucially, Biden certainly didn’t force out a prosecutor who had reservations about some of the charges he was being pressed to bring and replace him with someone who would quickly do his bidding.
Special counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against Donald Trump, on August 1, 2023. – Drew Angerer/Getty Images/File
The evidence
Indicting a former president, as special counsel Jack Smith did, is on another level than indicting a former FBI director. And Trump was indicted no fewer than four times, including twice at the federal level.
So Democratic administrations have clearly gone further in charging their political opponents, at least as things stand.
But just because the scale is different doesn’t mean it’s inherently more politicized. Put plainly: If you and your allies committed more alleged crimes or pushed the limits more, you would expect there to be more criminal charges.
And the record shows that, when charges were brought against Trump and his allies, they were overwhelmingly successful. They resulted in convictions or guilty pleas in the vast majority of cases – nearly a dozen in total, including prosecutions stemming from the Mueller investigation in Trump’s first term. The one big exception was the prosecution of Tom Barrack, in which he was acquitted.
Those convictions include, of course, Trump himself, who’s maintained no wrongdoing and pleaded not guilty in all cases against him.
He was found guilty of 34 felony counts in the one indictment that actually went to trial, the hush money case in New York.
And the federal charges against Trump that never went to trial also dealt with issues that even some Republicans regarded as very serious.
On the January 6, 2021, case, a historic seven Republican senators voted at his impeachment trial to convict Trump of inciting the insurrection. Others suggested Trump was culpable but voted to acquit him on a technicality because he was no longer president. (Then-Senate GOP Leader Mitch McConnell even indicated the issue was better handled in criminal court.)
On the classified documents case, even some of Trump’s own Cabinet officials cast the charges as completely legitimate. Former Attorney General William Barr said the evidence of Trump’s alleged obstruction of justice in refusing to return the documents appeared damning. And former Defense Secretary Mark Esper said that if the allegations were true, Trump jeopardized national security and should be “held to account.”
This photo from the US Justice Department shows boxes of classified documents stored in a bathroom and shower in the Mar-a-Lago Club. – US Department of Justice
It remains to be seen whether the charges against Comey, who maintains his innocence, wind up being successful. He’s charged with perjury and obstruction of a congressional proceeding, stemming from 2020 testimony in which he stood by his denials of authorizing leaks.
But it’s worth emphasizing that others have looked at such issues with Comey and didn’t seem to think they rose to the level of charges.
There is some uncertainty about precisely what Comey’s alleged false statements pertained to.
CNN reported Friday that officials and people involved in the case said the alleged leak involved an investigation into Hillary Clinton. CNN’s Jake Tapper reported that the individual whom Comey allegedly authorized to leak information was Columbia law professor Daniel Richman.
But documents declassified earlier this year by the FBI showed it probed the issue in 2017. Those documents said Richman denied Comey asked him to talk to the media and concluded, “The investigation has not yielded sufficient evidence to criminally charge any person, including Comey or Richman, with making false statements or with the substantive offenses under investigation.” (The Comey indictment doesn’t accuse Richman of wrongdoing.)
It also remains possible the person Comey allegedly leaked to was former deputy FBI Director Andy McCabe, who is now a CNN contributor. But a DOJ inspector general in 2018 examined Comey’s original comments denying authorizing leaks and found that, at least vis-à-vis McCabe, “the overwhelming weight of that evidence supported Comey’s version.”
Another DOJ inspector general report the following year faulted Comey for mishandling memos containing classified information. But Trump’s first-term DOJ declined to prosecute him over it, in part because of a lack of evidence that Comey acted willfully and intended to violate the law.
There’s much we don’t know about how substantial the charges against Comey might be, especially given the indictment didn’t go into much detail.
But we’ve already seen how Trump’s claims of criminal activity by his foes haven’t exactly panned out in the face of legal scrutiny. Trump and his allies endlessly hyped special counsel John Durham’s investigation into the origins of the Mueller probe, which Trump claimed to be a massive conspiracy against him. Three people wound up being charged with relatively minor crimes; two of them were acquitted.
That’s a huge contrast to the strong prosecutorial record in cases involving Trump and his allies.
If nothing else, Comey’s prosecution will at long last shine a major spotlight on whether Trump’s claims that his opponents are criminals holds up in court.
But regardless, the way in which we arrived at this point bears little resemblance to what happened during the Biden administration.
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