In May of 2016, shortly after Donald Trump had wrapped up his party’s nomination, but when the notion he might win the presidency seemed remote at best, Benjamin Wittes wrote one of the very early essays attempting to analyze how an obviously authoritarian president might abuse his powers. “The soft spot, the least tyrant-proof part of the government, is the U.S. Department of Justice,” he argued, laying out how prosecutorial discretion could allow a president to harass his domestic enemies.
Yesterday’s news that the Department of Justice is exploring yet another probe of James Comey, the former FBI director turned Trump antagonist, would seem to confirm those fears have been borne out.
As the Times report notes, the investigation — the second the Department of Justice has brought against Comey — is highly unusual. The charge is that, in 2017, Comey leaked to the Times and Washington Post details of a dubious Russian document that the bureau had acquired in 2017. The document claimed Attorney General Loretta E. Lynch had assured the Clinton campaign that the FBI would not investigate the email scandal very deeply. The authenticity of this fact has never been established, and some members of the bureau suspect it was Russian disinformation, designed to discredit the FBI and stoke suspicion about Clinton’s corruption. But the memo’s existence made Comey paranoid about the appearance of favoritism toward Clinton, and helped push him toward his fateful decision to announce a reopening of the email probe days before the election — a decision that likely swung the election to Trump.
Leaking details of FBI investigations to the media is illegal. Prosecution, however, is rare, and it is even more rare — possibly unprecedented — to prosecute leaks that occurred several years ago. So Comey is not being hit with trumped-up charges. He is the apparent victim of selective prosecution.
No single case is egregious enough to prove bias on its own. The pattern of selective prosecution under Trump’s Department of Justice, and his fanatically partisan Attorney General William Barr, has become evident in a series of cases that all resemble this one. The connecting thread is that Trump’s enemies are scoured for any violation that can be found, and held to the strictest letter of the law, while his allies are given broad latitude. [Continue reading…]