DEMOCRACY WATCHJames Comey’s Indictment Is a Trademark Tactic of Authoritarians
Legal experts across the political spectrum describe the indictment of former FBI director James Comey as an unprecedented political prosecution that breaks fundamental democratic norms and mirrors tactics used by authoritarian leaders worldwide. Comey’s indictment is momentous because it tests a principle that has protected American democracy: Presidents should not direct prosecutors to charge their political enemies. When leaders can abuse the justice system to target critics and investigators, the rule of law collapses.
Former FBI Director James Comey was indicted by a federal grand jury on Sept. 25, 2025 – only the second time in history an FBI director has faced criminal charges.
The indictment came just five days after President Donald Trump took to social media to demand that Comey be prosecuted, and three days after Trump installed a former aide as the prosecutor to bring the case.
Legal experts across the political spectrum describe this as an unprecedented political prosecution that breaks fundamental democratic norms and mirrors tactics used by authoritarian leaders worldwide.
As a professor of law, I think Comey’s indictment is momentous because it tests a principle that has protected American democracy for 50 years: Presidents should not direct prosecutors to charge their political enemies.
When leaders can abuse the justice system to target critics and investigators, the rule of law collapses.
An Unconstitutional Indictment
The evidence of political interference in Comey’s indictment is unusually strong. Trump waged an eight-year vendetta against Comey after the FBI investigated Russian interference in the 2016 presidential election.
On Sept. 20, Trump posted on Truth Social demanding prosecution: “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell… We can’t delay any longer… JUSTICE MUST BE SERVED, NOW!!!”
After the indictment, Trump called Comey “one of the worst human beings this country has ever been exposed to.”
The Fifth Amendment protects against vindictive and selective prosecution. To prove vindictive prosecution, a defendant must show through objective evidence that the prosecutor acted with “genuine animus” and that the defendant would not have been prosecuted except for that hostility.
As the U.S. Court of Appeals for the 4th Circuit explained in United States v. Wilson in 2001, the government cannot prosecute someone to punish them “for doing what the law plainly allows him to do.” When circumstances create a realistic likelihood of vindictiveness, the burden shifts to the government to justify its conduct.
After Comey’s indictment, Jordan Rubin, a former prosecutor in the Manhattan D.A.’s office, stated: “If the Trump administration’s prosecution of James Comey isn’t ‘selective’ and ‘vindictive,’ then those words have lost all meaning.”
Additionally, three former White House ethics counsels – Norman Eisen, Richard Painter and Virginia Canter – wrote to Congress after Comey’s indictment, saying that in the U.S.“a president should never order prosecutions of his enemies. That happens in Putin’s Russia, and it has happened in other dictatorships, but not here. Until now.”
