Former FBI Director James Comey is sworn in prior to testifying before a Senate Intelligence Committee June 8, 2017. REUTERS/Jonathan Ernst/
Lawyer and voting rights advocate Marc Elias wrote about the case against former FBI Director James Comey for his Thursday "Democracy Docket" newsletter, explaining that it has broader implications.
Elias began by describing the case as an "unserious" one, "so unserious, in fact, that the Department of Justice is now claiming that Comey posted the photo to increase book sales, comparing him to the villain in his fictional book."
Comey was indicted by a North Carolina grand jury after the Justice Department claimed that he was a "credible threat" to the president of the United States for posting a photo of shells on the beach that spelled out "86-47."
Elias said that the case may seem absurd, but it "has broader implications. How this case is dismissed will be critical to the future of the pro-democracy movement. At stake is a system of criminal prosecution that could cripple political opponents of the president — or be reined in before it's too late."
The backstory is simple, Elias explained. Donald Trump has repeatedly made clear that he wants James Comey punished. Trump even went so far as to post on Truth Social that he wanted Pam Bondi to go after Comey specifically, calling him "guilty as hell."
Comey’s lawyers have argued that the prosecution is selective or politically motivated. The DOJ claims that it can't be possible because the prosecutor overseeing the case had only just taken over, and had no discussions about the matter with the president.
"As surprising as it may sound, under current case law, the DOJ's argument is not without force," said Elias. "To prove a constitutional violation in these circumstances typically requires a direct connection between the actual prosecutor and any improper motive. Courts are instructed to presume that the government — including the DOJ — acts regularly and in good faith."
"Against that standard, the shortcomings of Comey's arguments are evident. He likely does not have direct evidence that the lawyers in North Carolina harbor unique ill will toward him or wish to engage in a sham prosecution," he added.
It means that Comey can't only argue that he's being prosecuted due to a political vendetta. It also doesn't mean that Elias thinks Comey should lose those motions, he made clear. But what that requires "is the abandonment of the old presumptions and standards, which are built on a theory of government-on-the-merits that no longer exists."
There are already judges openly questioning whether or not the Justice Department is acting in good faith with investigations and prosecutions. The most recent example is a federal judge overseeing a case demanding all Jeffrey Epstein case documents, regardless of whether or not they're seen as redundant.
The Comey case is a little more obvious given Trump has been clear about his demands on social media. "The lawyers know it, the judge knows it, and the media knows it. It is time everyone stopped pretending otherwise," said Elias. "Ambitious federal prosecutors, looking out for their own careers, are trying to please a vindictive president. It is that simple."
Giving prosecutors the benefit of the doubt can make it too hard for a person to prove they are being unfairly targeted.
He closed by saying that the case should simply be dismissed, and if it isn't, the case will likely fail. The question he has is whether the courts will view it as an opportunity to fix a broader problem with the system, automatically trusting whatever the DOJ claims. He's hoping, "for the sake of democracy," that the courts will do the former.