Biggest Hogwash Of The Week: Justice Department Independence From Politics

Late Friday afternoon (September 26) the U.S. Justice Department filed an indictment against former FBI Director James Comey in the District Court for the Eastern District of Virginia.  The indictment is extremely brief — barely one page of text — and focuses only on a single statement made by Comey in sworn Congressional testimony given on September 30, 2020, which statement is alleged in the indictment to be false.

For a few reasons, I’m not going to comment here on the strength or weakness of the indictment.  First, the indictment does not allege the related facts that go to whether the statement in question was actually true or false; and I don’t have access to all the facts (like documents that may be in the possession of DOJ) that may be relevant to figuring out the truth or falsity of the statement.  And second, it is notable that the indictment was filed on the eve of the expiration of the statute of limitations for this piece of testimony (the five year period after the statement would have expired today), and the indictment may well be amended to add more allegations.

Note that essentially every other commentator on this subject is in the same position that I am in of not being able to make a full analysis of the merits of the indictment.  That has not prevented the usual suspects from criticizing President Trump for pushing for the indictment.  To some degree, I agree with these criticisms, or at least I am sympathetic to them, to the extent that they criticize the President for seeking to use the justice system to get back at his political enemies.

But then, seemingly in each case, the critics go farther, and assert that with this indictment President Trump has done something totally new and different, and has entirely broken or transformed (or maybe “trampled on”) the former longstanding and proper norms of the Justice Department of never, ever abusing the justice system to attack political opponents.  These assertions are not potentially appropriate criticism, but rather are complete hogwash.  Indeed they are far worse than mere hogwash, because even if you assume the worst about the indictment of Comey being nothing more than meritless retribution from a vengeful President, the level of political misuse of the Justice Department and justice system by the current administration remains a small fraction of the misuse by the prior regime.