Former FBI Director James Comey is the one government official everyone loves to hate. From his decision to reopen an investigation of emails sent by former Secretary of State Hillary Clinton on a private server in 2016 to the bureau’s Crossfire Hurricane probe that same year into whether the Trump campaign colluded with Russia, Comey’s decisions have been sharply criticized by people across the political spectrum.
The Trump administration is no doubt counting on the public’s personal opinions of Comey to make them apathetic to his indictment on Thursday night for perjury and obstruction. But to do so would be a mistake: No matter what you think of Comey or his actions while head of the FBI, the charges brought by the Justice Department are dangerous and an outrage to the rule of law.
Democrats remain angry with Comey’s handling of the private email server investigation of Clinton, which led to the conclusion by federal prosecutors that there was not enough evidence to charge her with a crime. Because of the intense public attention on the case, Justice Department officials intended to make a public statement regarding the declination to prosecute. However, then-Attorney General Loretta Lynch had had a brief conversation with former President Bill Clinton while waiting on an airport tarmac, which Comey believed created a conflict of interest (this was back when it was still unacceptable for the attorney general to have even a perception of any personal stake in an ongoing investigation).
Comey, therefore, took it upon himself to publicly announce this conclusion, bypassing Lynch and characterizing Clinton as “extremely careless,” despite the fact that she was not charged with any crime. Comey later announced that he had reopened the email investigation 11 days before the 2016 election. New emails were discovered, but ultimately the FBI announced it had found nothing that warranted criminal charges. Still, the damage to Clinton’s campaign was done.
Republicans, meanwhile, share President Donald Trump’s enmity for Comey because of Crossfire Hurricane, the FBI investigation into Russian election interference in 2016 that ensnared the Trump campaign in its crosshairs. Shortly after Trump took office in his first term, Comey briefed the president on Crossfire Hurricane, which included an ongoing inquiry into Trump’s then-national security adviser, Michael Flynn. Trump later had a private dinner with Comey (again, this was a time when such things were unusual) and asked him to “let go” of the Flynn investigation. Comey’s refusal to do so set in motion a series of events that led to Comey’s firing (ironically on the pretext that he had violated Justice Department policy by announcing the Clinton investigation) and the appointment of a special counsel who continued the investigation into Russia and into Trump for obstruction of justice.
In short, Comey has few fans on either side of the aisle. But the events and highly irregular process that led to Comey’s indictment should make anyone, Democrat or Republican, concerned about the impartiality of the rule of law in America.
Trump has long been explicit in his desire to seek retribution against Comey and even campaigned on this promise. The former U.S. attorney for the Eastern District of Virginia, Erik Siebert — appointed by Trump — reviewed the evidence against Comey and decided last week there was not enough to bring charges. He then resigned under pressure, after which Trump sent a public message to his attorney general on social media that he expected her to bring charges against Comey and was appointing his former assistant and personal lawyer, Lindsey Halligan — who has no experience prosecuting cases — to make that happen.
In the meantime, other career prosecutors sent the attorney general a memo indicating that they did not believe there was sufficient evidence to secure a conviction against Comey, as the Justice Department’s policies require, to bring charges. Nevertheless, Halligan sought an indictment under her own name and was successful in this effort, only five days shy of the five-year statute of limitations.
None of this is normal.
Comey will, of course, have the due process protections of the American justice system — which remain a beacon and model for the rule of law — as this case proceeds. But the juxtaposition of the norms that existed when he was fired as director of the FBI, such as an expectation of a firewall between the White House and the Justice Department, is stark.
The case against Comey also stands in contrast to the investigations into Trump for the events of Jan. 6, 2021, and for his alleged mishandling of classified information. Charges for these actions were brought only reluctantly by President Joe Biden’s Justice Department, with no direct involvement by the president and only after the appointment of an independent special counsel. Indeed, in the classified documents case brought by Special Counsel Jack Smith, federal prosecutors bent over backward to avoid charging Trump, giving him every opportunity to avoid this outcome.
Lavrentiy Beria, Joseph Stalin’s secret police chief, famously once said, “Show me the man, and I’ll show you the crime.” The president of the United States, who commands executive departments that hold vast amounts of information about every person in this country, has this kind of power. Whether you love or hate Comey or his past actions, the indictment against him signals that we have entered a phase of our nation’s history where anyone might be next.
