DEMOCRACY WATCHFor Trump’s Perceived Enemies, the Process May Be the Punishment
Even when an individual is not convicted, the process of defending against charges can itself be a form of punishment. This recognition is one of the reasons that the DOJ has maintained independence from the president. By violating the tradition of staying out of politics, the Justice Department in the Trump administration has opened the door for the president to seek retribution on his perceived political enemies. The mere act of putting them through the criminal process ensures that they suffer, regardless of their guilt or innocence.
Former FBI Director James Comey pleaded not guilty to two criminal charges in a federal court in Alexandria, Virginia, on Oct. 8, 2025. The charges allege that Comey lied to Congress in September 2020 when he stood by earlier testimony that he did not authorize a leak of an FBI investigation involving Hillary Clinton.
Numerous legal commentators on both the left and right have argued that Comey’s indictment is little more than the Trump administration seeking vengeance on one of the president’s perceived enemies. They allege that the president has it out for Comey, who investigated Russian interference in the 2016 presidential election and was fired by Trump in 2017.
The president’s own words support the idea that the Trump administration is targeting Comey. In a social media post on Sept. 20, 2025, Trump directed Attorney General Pam Bondi to move forward with prosecutions against Comey, Democratic U.S. Sen. Adam Schiff and New York Attorney General Letitia James: “They’re all guilty as hell, but nothing is going to be done. …JUSTICE MUST BE SERVED, NOW!!!”
If the case against Comey is exceedingly weak – and little more than a political prosecution – then, in my view as a scholar of the U.S. legal system, it should result in the dismissal of charges by the judge or a not guilty verdict by the jury.
But even when an individual is not convicted, the process of defending against charges can itself be a form of punishment, as renowned legal scholar Malcolm Feeley pointed out almost 50 years ago.
Here’s how the criminal justice process punishes even innocent people.
The Criminal Justice Process
The criminal justice process is complex.
After a grand jury returns an indictment at the request of a prosecutor, the accused appears in court for their arraignment. They are informed of the charges against them and typically enter a plea.
During what’s called “discovery,” the prosecution and defense investigate the evidence the other side plans to rely on. There are also pretrial motions in which the parties ask judges to dismiss charges and accept or exclude evidence.
The defense and prosecution may also meet to discuss a plea bargain, wherein the accused may plead guilty in exchange for a lesser sentence or reduced charges.
If there is no plea bargain, then the case moves to trial, which is itself a complicated process. If a defendant is found guilty, they can mount an appeal to higher courts in an attempt to have their conviction overturned.
