Comey, James Case Dismissals Don’t End Political Prosecutions

Now that a federal judge has ruled that President Donald Trump’s hand-picked US Attorney can’t legally indict James Comey or Letitia James (or anyone else for that matter), the court no longer needs to decide Comey’s and James’s other arguments for why their indictments were unlawful, including whether their prosecutions were unconstitutionally vindictive and selective because they were targeted by the president.

An important question therefore remains unanswered: Can a president direct a properly appointed prosecutor to proceed criminally against specified individuals? Trump has decided not to follow various traditions and “norms” in calling for the indictments of several of his political adversaries, and the Constitution only limits the president’s power in this regard to a very limited extent.

Executive power is embodied principally in Article II, Section 3, which empowers the president to “take care that the laws be faithfully executed.” There is nothing in the Constitution that limits the president’s actions regarding criminal prosecutions, nor does anything in the Constitutional Convention debates or the Federalist Papers provide any more detailed description.

Still, despite the lack of explicit constitutional language empowering the chief executive to direct specific prosecutions, the actions of our first three presidents dispelled any confusion.  

George Washington, John Adams, and Thomas Jefferson all instructed subordinates, mainly their appointed federal attorneys, to prosecute specific activities and individuals—and took the added steps of instructing those attorneys not to bring criminal charges against other individuals.  Adams in particular was actively engaged in directing the prosecutions of newspaper publishers who had criticized him.

The exercise of this power was given an early imprimatur from John Marshall, the fourth Chief Justice of the US Supreme Court. Before his appointment to the court and while he served in Congress, then-Rep.Marshall described the president’s prosecutorial power as “an indubitable” constitutional power of the chief executive.

Jefferson took this power to the next level by directing his federal attorneys to charge Aaron Burr, his former vice president and political opponent, with treason.  Jefferson went so far to support the prosecution that he gave the prosecutors blank pardon forms to be used to procure favorable testimony from recalcitrant witnesses.

This was the prevailing view on the president’s ability to influence criminal prosecutions for decades. The primacy of the president’s prosecutorial power gave way in the 20th century to the notion that prosecutorial decisions should be immune from political interference and that the Justice Department should somehow be “independent.”

Most commentators point to then-Attorney General Robert Jackson’s speech on April 1, 1940, delivered in the Great Hall at the Department of Justice to the assembled US Attorneys, as the institutional beginning of this notion. In his speech, Jackson stressed that the risk of prosecutors allowing their personal biases or views to influence prosecutions was “the greatest danger of abuse.”

Though there have been some efforts to formalize this independence, the limitations on the president’s power to dictate prosecutorial decisions have largely rested on norms, the agreement among senior government officials of both parties that prosecutorial decisions should be made principally by career officials without the interference from the president or his aides.

Much of the work of enforcing those norms rested on the attorney general who, while chosen by and answerable to the president, was expected and trusted to maintain DOJ’s independence from the White House.

But norms aren’t enforceable and rely entirely on voluntary acceptance by those involved. Trump has in this arena—and many others— disregarded the norms largely accepted by his modern predecessors. And his senior government officials, including Attorney General Pam Bondi, have followed suit in rejecting these norms.

To further sound the death-knell of the previous norms, in 2024, the Supreme Court in Trump v. US, the decision conferring criminal immunity for certain acts of presidents, stated that “the Executive Branch has exclusive authority and absolute discretion to decide which crimes to investigate and prosecute.”

The court also reinforced the president’s absolute control over his attorney general, noting that “the President’s management of the Executive Branch requires him to have unrestricted power to remove the most important of his subordinates—such as the Attorney General—in their most important duties.”

What constitutional protections, then, are left to limit a president from directing specific prosecutions?

The only tools possessed by defendants in these prosecutions are the constitutional equal protection and due process protections embodied in the prohibition against selective and vindictive prosecutions. Both were cited by Comey and James as additional reasons to dismiss the indictments against them. But because the court dismissed their indictments on other grounds (Halligan’s improper appointment), it didn’t rule on those arguments.

Should Comey and James be re-indicted by a properly-appointed prosecutor, they could raise the doctrines of selective and vindictive prosecutions once again. Whether these principles turn out to be effective bulwarks against political prosecutions remains to be seen.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Richard Sauber is an attorney in private practice in Washington, DC. He was formerly Special Counsel to President Joe Biden. His opinions do not reflect the views of his law firm.

Shikha Garg is an attorney in private practice in Washington, DC. Her opinions do not reflect the views of her law firm.

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