Here’s a simple thought experiment for you. The Justice Department, as you know, is prosecuting former FBI Director James Comey, a longtime foe of Donald Trump. Now imagine if acting Attorney General Todd Blanche remarked to a colleague: “I know this prosecution is nonsense on the facts and the law, but I’m pursuing it anyway, purely because Trump ordered me to—and because it will induce Trump to make me permanent AG.”
Would that be illegal or unlawful on Blanche’s part? Would Blanche be subject to sanctions or accountability? The answers turn out to be complicated. And right now, Democrats are starting to think them through. Because if they win back one or both chambers of Congress, passing DOJ reform will be critical as part of an agenda to “fascism-proof” the system against future authoritarian presidents.
“We’re going to explore whether there’s a way to prohibit this,” Senator Adam Schiff, the California Democrat who has also been targeted by Trump, told me in an interview, speaking of Trump’s prosecutions of Comey and other enemies. “There has to be a lawful, constitutional way.”
Blanche’s quotes on NBC News over the weekend about the Comey prosecution underscored the urgency of this for Democrats. The DOJ is prosecuting Comey for allegedly threatening the president, based on his social media posting of an image of seashells arranged to spell “86 47,” which doesn’t remotely meet the statutory requirement for such a threat to be chargeable.
Blanche acknowledged in that NBC appearance that “86 47” is commonplace and that others using it on social media or to sell merchandise won’t be prosecuted. “That’s posted constantly,” he admitted. But he insisted that the phrase is only “part of” the case against Comey, suggesting that 11 months of investigation—Comey’s post came last spring—had turned up much more evidence.
The naked absurdity of this has been witheringly dissected everywhere. The term “86” doesn’t even mean “assassinate.” The relevant statute requires prosecutors to prove that a reasonable person would have understood the phrase as a true threat to the life of the president—and that Comey actually did intend to convey that threat. It’s always possible the DOJ has amassed devastating evidence of this intent, but no experts think it’s likely.
Which raises bigger questions: Presuming that this prosecution is utterly baseless, is Blanche allowed to do this? What can be done to stop such prosecutions in the future?
You’ll recall, of course, that Trump has publicly ordered the DOJ to prosecute many of his enemies, from Comey to New York Attorney General Letitia James to Federal Reserve Chair Jerome Powell. He frames this as retribution, meaning he’s demanding prosecutions regardless of what the evidence shows.
What’s more, Blanche predecessor Pam Bondi’s transgression was precisely that she failed (after trying very hard) to carry out prosecutions unsupported by facts and law. As The New York Times reports, Blanche is maximizing efforts to prosecute Trump foes because the president wants him to, and it could win him the AG slot on a permanent basis. No one is even pretending this is about anything else. So—in the spirit of the above thought experiment—what should be done about it?
In our interview, Schiff said that if granted the majority, Democrats will explore legislative fixes that could limit presidential pardons of prosecutors who carry out corrupt prosecutions, among other things. Schiff allowed that there may be separation-of-powers problems with limiting a president’s ability to direct prosecutions, but he said his underlings might be further constrained.
One possibility, Schiff noted, might be to codify into law—and further clarify—the guidelines that already exist at DOJ. Those theoretically limit malicious or baseless prosecutions. But prosecutors still enjoy tremendous discretion—so much so that it’s not even clear my thought experiment involves illegal acts or that they would be actionable. Schiff suggests barring the department from bringing charges solely on the order of a president that the department would not have brought otherwise. Another idea: creating new types of limits on knowingly “selective” or “vindictive” prosecutions.
“I do think there’s a way of legislating this that would be constitutional,” Schiff told me, noting that the goal should be “codifying guardrails” into “strict and legally enforceable protections against any future president abusing the office the way Trump has.”
Schiff and other Democrats have already sponsored legislation that would require more reporting to Congress on White House–DOJ communications. In a new book, former federal prosecutor Barb McQuade suggests codifying limits on president-to-DOJ communications about the president’s political rivals in particular, among many other things.
Meanwhile, the Center for American Progress is exploring ideas like new evidentiary burdens for DOJ to meet in cases involving people explicitly targeted by the president for prosecution. Brian Beutler has suggested that the next attorney general launch a major post-Trump fumigation of the department—with concrete accountability for its abuses at its center. Relatedly, law professor Stephen Vladeck suggests an overall posture for Democrats: “If you’re going to act in a way that’s grossly unethical and in violation of individuals’ rights, we’re going to do whatever we can to hold you accountable.”
“The Justice Department is in shambles,” Schiff told me. “There is an unethical culture at the top that’s going to have to change.”
That’s seconded by Ken White, a federal criminal defense attorney who writes a well-regarded blog about the law. He called the Comey prosecution “the single most flagrantly meritless indictment I’ve seen in my entire career” and added that it occasions deeper congressional reforms.
For instance, White said, one reform might direct courts that conclude a prosecution was brought based on misinformation to order the DOJ to reimburse defendants’ legal fees. He also suggested requiring courts that determine a grand jury has been flagrantly misled by prosecutors—as White believes happened with Comey—to report it to the relevant state bar, facilitating professional disciplinary action.
The point here is to establish a forward-looking mindset: that dealing with these levels of flood-the-zone lawlessness and abuses of power will require future Congresses to think big. Richard Nixon’s abuses exposed the need for far-reaching post-Watergate reforms. But much of that architecture—along with many norms of prosecutorial good faith and independence it inspired, at least as an ideal—has broken down in the face of an even more lawless president.
“A lot of the limits on the incredible power of federal prosecutors are normative, rather than legal,” White told me. “Hopefully some of these abuses are appalling enough that a future Democratic Congress will pass hard statutory protections instead of just relying on DOJ culture, tradition and institutionalism.”
The post-Nixon Congresses were populated by a new generation of eager reformers known as “Watergate babies.” The post-Trump reformers will have to make their predecessors look like, well, babies—by outdoing them in determination, ambition, inspiration, and purpose.
