The Justice Department’s attempt to prosecute critics of President Donald Trump has failed dramatically, surprising legal experts and former prosecutors.
Charges brought against James Comey and Letitia James are dismissed
Former FBI Director James Comey has responded after a judge ordered the Justice Department to drop charges against him.
Indictment dismissed. Two grand juries declined to bring new charges. A judge blocked key evidence from being used in a new case. In trying to prosecute President Donald Trump’s chief target, the Justice Department faced failures on a scale rarely seen in federal prosecutors.
The most dramatic recent setback was a second federal grand jury declining to indict New York Attorney General Letitia James on Dec. 11, after an earlier grand jury rejected the Justice Department’s indictment last week. Abby Rowell, a prominent lawyer representing James, called the repeated failures “unprecedented.”
Shortly before that, earlier charges against Mr. James and former FBI Director James Comey were dropped, with a judge ruling that the Justice Department could not use evidence that was key to the original indictment against Mr. Comey – at least for now.
The latest developments compound the difficulties Trump administration lawyers have faced in trying to prosecute Comey and New York Attorney General Letitia James. In a Sept. 20 social media post, the president called for the prosecution of both men and Sen. Adam Schiff (D-Calif.).
“This is embarrassing,” former federal prosecutor Neema Rahmani told USA TODAY. “The last thing you want to do as a prosecutor is to be on the defensive, and that’s exactly what’s happening here.”
The Justice Department’s investigation into Schiff has stalled, NBC News reported, citing four anonymous sources familiar with the matter. According to multiple media reports, federal investigators are currently looking into how Schiff’s investigation was handled.
The Justice Department declined to comment on its track record in litigation against President Trump’s targets.
Charges were dismissed after mounting legal challenges
On September 25, a federal grand jury indicted Comey on charges of lying to Congress and obstructing Congress during his testimony before a Senate committee on September 30, 2020. A separate federal grand jury indicted Mr. James on October 9 on charges of bank fraud and making false statements to a financial institution.
Trump’s vendetta against them goes back years. In 2017, he fired Comey as FBI director who was investigating possible contacts between the 2016 Trump campaign and the Russian government. Since then, Comey has become an outspoken critic of Trump. James filed a civil fraud lawsuit in 2022 accusing Trump of engaging in fraud over his years as a real estate mogul.
Earlier this year, longtime prosecutors, including the interim federal prosecutor for the Eastern District of Virginia, who was appointed after Trump took office in January, reportedly concluded that the evidence in both cases was too weak to prosecute.
President Trump later posted on social media that he had fired the lawyer and recommended that Attorney General Pam Bondi replace him with Lindsey Harrigan, a former personal attorney with no experience as a prosecutor. Mr. Bondi took that action within days, and Mr. Harrigan secured indictments against both Mr. Comey and Mr. James.
The hurdles for the lawsuit were high almost from the beginning.
Mr. Comey and Mr. James each filed a motion arguing that the charges were motivated by Mr. Trump’s personal animosity and were therefore unconstitutional. James claimed the government had taken “outrageous” actions that violated the Constitution, including firing career prosecutors and ethics officials who were interfering with the prosecution. Comey said his case stemmed from grand jury misconduct, including the failure to present a final indictment to the grand jury, and therefore should be dismissed.
Judge William Fitzpatrick, who was appointed to the job by the other justices, said there was evidence of a “disturbing pattern of serious investigative errors” in the Comey case. He said the government may have violated Fourth Amendment protections against unreasonable searches and seizures, including when it obtained the evidence.
In late November, Judge Cameron McGowan Currie, appointed by Mr. Clinton, concluded that Mr. Harrigan was illegally appointed and dismissed all charges against Mr. Comey and Mr. James.
As a result, the charges didn’t hold much weight in court, even though they made life harder for Comey and James.
“So far, I don’t think the federal Justice Department has had much success other than harassment, and that’s probably the point,” Carl Tobias, a law professor at the University of Richmond, told USA TODAY.
Multiple attempts to re-indict James have failed.
This was not the end of the Justice Department’s setbacks in the case against Comey and James.
Although Bondi vowed to appeal the firing, the department quickly took a different approach, seeking to move on from the issue in which Harrigan secured the original charges by seeking new charges against James.
The indictment process before a federal grand jury is highly advantageous to the prosecution. They are present, but the defense team is not. They just need to convince a majority of the jury to indict. It is enough for them to show that their claim is probably true. And the standard for presenting evidence before a jury is lower than at a trial.
In contrast, a conviction at trial requires a jury to unanimously conclude that the defendant is guilty beyond a reasonable doubt.
However, on December 4, a federal grand jury rejected prosecutors’ request to reindict James. Former prosecutors say this suggests the evidence against James is weak.
Former federal prosecutor Mitchell Epner estimates he sought indictments more than 100 times during his three years with the New Jersey State Attorney’s Office, but never got one. He said he was aware of only one unsuccessful prosecution of thousands of prosecutions across his office during that period.
Epner told USA TODAY that presenting the case to two different grand juries in one week and not indicting him both times was “disgraceful and a repudiation of the prosecution.”
Rahmani estimates that while he was a federal prosecutor, he obtained grand jury indictments for about 100 defendants, and that the grand jury had never failed to indict him.
“If you can’t convince a grand jury, there’s no way you can convince a trial jury,” he said.
Barbara McQuaid, a former prosecutor for the Eastern District of Michigan under President Barack Obama, said in an email that prosecutors’ ethical obligations prohibit them from filing criminal charges when there is a high probability that a conviction will not be obtained at trial.
“This is the kind of garbage you would expect when prosecutors are chosen based on loyalty rather than experience or integrity,” McQuaid said.
Justice Department blocks evidence from Comey for new indictment
The Justice Department has also indicated that it may seek to prosecute Comey again. In a Dec. 9 court filing, prosecutors asked Judge Kohler Kotelly to lift a temporary block on Mr. Harrigan’s right to use the same evidence he used in his initial indictment of Mr. Comey.
Koller-Kotely ruled on Dec. 6 that the government’s retention of evidence first obtained during a separate investigation in 2017 probably amounted to an unconstitutional search or seizure.
Koller-Kotely could issue a new ruling to lift or extend the temporary block when it expires on December 12.
Even if the Justice Department were able to overcome that challenge, it would still face additional legal hurdles regarding whether the deadline to prosecute Comey has passed.
The first charges against him were handed down just five days before the five-year statutory deadline for prosecution.
Prosecutors may argue that federal law typically gives the government an additional six months to pursue new charges after federal charges are dismissed. But Comey’s lawyer, Patrick Fitzgerald, suggested the defense would disagree. In a statement after the first indictment was dismissed, he suggested that because the indictment was invalid, the six-month provision would not be triggered and that Comey could therefore not be re-indicted on the same charges.
“The Department of Justice and Harrigan himself, especially they have egg on their faces,” Rahmani said. “This is nothing short of a pretty massive failure by the Department of Justice in these cases.”
