In one way, it’s a rather frightening precedent for a president to so clearly and directly force the prosecutions of his political foes, as Donald Trump has now done with both former FBI director James Comey and New York Attorney General Letitia James.
(Try as Trump’s allies might, there is no comparing his role in these prosecutions with Joe Biden’s relationship to Trump’s indictments. It’s a far more direct line.)
But in another way, it will at least be instructive.
After spending years trying to force legal peril on his foes and being thwarted by aides who apparently thought better of it, Trump is finally going to be forced to pony up with actual evidence. And he will have to pony up in a forum that has been far less favorable to his claims than the political arena: courts of law.
Indeed, it seems quite possible these prosecutions will fail. And predictably so, given that appears to have been the overwhelming conclusion of the more experienced prosecutors who first looked at these cases.
But what would that mean?
This could actually backfire on Trump by laying bare the nakedness and politicization of these prosecutions. That’s because Americans are already inclined to think that’s what Trump is doing — much more so than they thought Biden did.
Conversely, Trump seems more preoccupied with vengeance than convictions, with firing up his base and with giving his opponents headaches — which these cases will certainly provide for Comey and James. And at the very least, these efforts send a message to Trump’s would-be antagonists to back off.
Let’s run through it.
Why the cases are suspect
First, it’s worth recapping the evidence that these prosecutions aren’t exactly on the firmest of terrains.
In both cases, a batch of reporting — including from CNN — has made clear that a number of prosecutors didn’t believe the prosecutions would succeed, for either Comey or James.
Career prosecutors didn’t sign the indictments. CNN has also reported even Trump’s loyalist attorney general, Pam Bondi, and Deputy Attorney General Todd Blanche have had concerns about the cases. And Trump of course had to force out a US attorney he had nominated who resisted these cases, Erik Siebert.
The best Trump could apparently find to charge ahead was a loyalist who was an insurance lawyer by trade with very little experience in federal courtrooms, Lindsey Halligan. CNN reported Friday that Halligan didn’t coordinate with top DOJ leaders like Bondi and Blanche in the James case. And she will now face off in the Comey case with renowned former US attorney Patrick Fitzgerald.
While grand juries agreed to indict in both cases, that’s generally a very low bar to clear. The standard of evidence is much lower. And federal grand juries declined to indict in just 11 of more than 160,000 cases during a one-year period between 2009 and 2010, according to a Washington Post study.
We also know that the Comey prosecution struggled to clear even that very low bar. One charge against him was declined — again, an extremely rare occurrence — while the others got 14 votes, slightly more than the 12 required.
There are also open questions about whether the cases will even proceed. Both James and Comey seem to have colorable arguments to get these cases dismissed on vindictive prosecution grounds, given Trump’s clear role in forcing them. (Comey’s defense is already pursuing this.) And they could also ask for dismissals by arguing that Halligan was illegitimately appointed.
As for the details of the actual cases? We know very little about them in James’s case. That’s because the charges actually relate to a real estate transaction that’s different from the ones the administration has previously flagged as being potentially fraudulent. But in Comey’s case, even conservative legal analysts have been quite skeptical of the charge that he made false statements to Congress.
All of which reinforces that getting 12 jurors to unanimously vote that Comey and James are guilty beyond a reasonable doubt could be quite difficult.
Trump-spurred prosecutions have a poor track record
And if that happens, it would actually be a little more familiar than people might realize.
While the cases weren’t as high-profile, we have seen prosecutions apparently stemming from Trump’s political vendettas. And they haven’t gone well.
Special counsel John Durham lost two of three cases in his Trump-spurred investigation into the origins of the Trump-Russia investigation. And former Trump administration US attorney Geoffrey Berman has indicated charges were brought in 2018 against Democratic lawyer Geoffrey Craig after political pressure was applied (Berman said a Trump political appointee told him to “even things out” after prosecutions of Trump allies). Craig was quickly acquitted.
Failures in these new cases, though, would be much bigger deals. And if they do fail, it would be a marked contrast to the overwhelmingly successful prosecutions of Trump and his allies. When those cases went to trial, they almost always succeeded.
Americans seem to understand Trump has gone further
That would reinforce that the difference between those prosecutions and the new Trump-forced ones isn’t just Trump’s much more prominent role in them; it would also be that Trump is forcing much thinner cases.
And that’s actually a political risk for him.
Despite all the right’s attempts to equate what Trump is doing with what Biden did and argue that Biden started it, Americans actually seem to understand there is a difference.
A Pew Research Center poll taken in late September showed 62% of Americans overall and even 40% of Republican-leaning voters think Trump has improperly pushed for investigations of his political foes. That number for GOP-leaning voters is particularly striking.
After Trump was indicted, by contrast, polls showed less than half of Americans connected the charges to Biden and politics.
And generally speaking, majorities said the charges against Trump were justified and even that he should have been convicted (which he was in the only case that went to trial, in New York).
Why Trump might see value even in losing
All of that said, it’s not even clear that Trump cares that these cases might fail. He’s certainly been warned enough of that possibility, and he’s pressed forward anyway.
All of which suggests he might view it as worth it regardless.
Even if the cases ultimately fail, he will have created problems for these foes, forcing them into complex and costly legal defenses of themselves. And these aren’t just critics; they’re people who played major roles in legally scrutinizing Trump.
The message sent: You come at Trump, and we will make life difficult for you. At the very least, Trump has ratcheted up the legal lawfare battle in ways that could give future would-be antagonists pause. Trump has taken a similar approach to creating legal problems for media institutions, law firms and colleges.
It’s also quite likely that Trump would use even dismissals or acquittals to ratchet up his claims of deep-state and judicial persecution. Both cases happen to have been randomly assigned to Biden-appointed judges, a perhaps-unfortunate circumstance for our body politic.
Trump has shown he’s quite happy to attack judges who rule against his side and use their rulings to chip away at the legitimacy of perhaps his biggest remaining obstacle to power: the judiciary.
Trump’s supposed judicial persecution is an argument that has largely only been embraced by Trump supporters, not the public writ large. But the fact that his supporters have embraced it is significant.
And it means even adverse outcomes for Trump could turn his frightening precedent into a frightening scenario for our country.