'Huge embarrassment for Trump’s DOJ': Experts predict 'frankly lawless' ploy will backfire

President Donald Trump addressing the U.S. Department of Justice (DOJ) on March 14, 2025 (Official White House Photo by Joyce N. Boghosian/Flickr)

Lawfare Editor in Chief Benjamin Wittes tells Bulwark that President Donald Trump’s Department of Justice is shattering the claim that a “grand jury will indict a ham sandwich.”

Speaking with Bulwark Publisher Sarah Longwell, Wittes said Trump’s political prosecutions have been so obvious to jury pools that they’re rarely taking them seriously anymore. This, he added, would likely be the case with Trump’s attempt to indict former FBI Director James Comey.

MSNBC reported that Trump’s DOJ is expected to “indict” Comey in the coming days, although the full extent of the charges being prepared against Comey is unclear. After firing the last U.S. attorney who failed to build a case against Comey, Trump appointed former Miss Colorado contestant Lindsey Halligan as acting U.S. Attorney for the Easter District of Virginia to cobble together an indictment.

As of Thursday (Sept. 25), Halligan has only four days of prosecutorial experience, but Wittes said that’s not the biggest issue working against Trump. At this point, it’s a matter of trust — and Trump has none outside the MAGA crowd.

“You are not realistically going to bring a coherent case against Jim [Comey],” Wittes told Longwell. “… Now, let's be clear about what that means. That doesn't mean an indictment will be handed up. It means they are going to a grand jury with an indictment. As we have seen recently, grand juries will not, in fact, indict a ham sandwich.”

“A lot of grand juries have been saying ‘no’ to this Justice Department because it is frankly lawless,” said Wittes. “And grand juries have a way of seeing through that. So don't be too surprised if what happens in this case is that they go to a grand jury and the grand jury says, ‘put it where the moon don't shine.’”

Wittes said the Trump DOJ appears to know the local jury pool no longer trusts them and are trying to fish in friendlier waters.

“They appear to be bringing this case not in either Washington, where the testimony took place, or in Alexandria, where Jim [Comey allegedly conveyed false statements]. … [T]hey appear to be bringing it either in Richmond or Norfolk, which as best as I can tell is a way of getting as far away from a DC jury pool as possible.”

The second thing the administration is trying to do is aim low by claiming Comey lied to a congressional committee. He added that Comey will likely be Halligan’s make-or-break case.

“This is the prerequisite for Lindsay Halligan getting this job, and she will not keep it if she doesn't do this,” Wittes said.

Wittes is not the only legal observer predicting hard waters ahead for Trump's Comey prosecution.

"This is going to be another huge embarrassment for Trump's DOJ," Maryville College professor and political historian Aaron Astor posted on X. "Even if they coax a Grand Jury into indicting, he clearly won't be found guilty."

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