James Comey could not contain himself at the news of an indictment of former President Donald Trump.
Comey hopped on Twitter to declare, “It’s been a good day.”
The former FBI director, who has been teaching and speaking on government ethics, joined others in celebrating the upcoming arrest of Trump because nothing says “ethical leadership” like a patently political prosecution.
Comey declined to prosecute Hillary Clinton on her email scandal despite finding that she violated federal rules and handled classified material “carelessly.”
He declared, “Ethical leaders lead by seeing above the short term, above the urgent or the partisan, and with a higher loyalty to lasting values, most importantly the truth.”
Yet now Comey is heralding the effort of Manhattan District Attorney Alvin Bragg, who campaigned on a pledge of bagging Trump for some unspecified crime.
While the actual charges will not be disclosed until the release of the indictment, the underlying theory discussed for months is an effort to revive a dead misdemeanor offense of falsifying business records — years after the statute of limitations expired.
Bragg may try to accomplish this Frankensteinian feat by converting this into a felony.
The long-debated theory in Bragg’s office was whether they could effectively allege a violation of federal election laws even though the Justice Department and the Federal Election Commission declined such charges.
Notably, Bragg’s predecessor declined to bring these charges.
Bragg himself declined to do so, and that led to two of his prosecutors resigning in protest.
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Mark F. Pomerantz then proceeded to do what some of us view as breathtakingly unprofessional.
He wrote a book on what he learned in the investigation, which was still ongoing.
He made the case for indicting an individual who had not been charged, let alone convicted.
He continued to engage in this public campaign despite requests from his former office that he was undermining its ongoing investigation.
The public pressure worked.
Despite the widespread criticism of Bragg for reducing charges for an array of felonies by Manhattan criminals, he spent months working to convert a misdemeanor into a felony.
Trump would apparently have been better off robbing Stormy Daniels at gunpoint rather than paying her off for a nondisclosure agreement.
And yet Comey is not alone in his praise.
Various professors and pundits have declared that this unprecedented use of New York law would be perfectly legal and commendable.
They largely ignore that the misdemeanor is expired.
Instead, Georgetown Law professor and MSNBC legal analyst Paul Butler declared, “Nobody is above the law, including Donald Trump.
“It doesn’t matter that this is kind of a minor crime compared to some of the other allegations.”
However, the law also protects people from selective prosecution and affords them protection through the statute of limitations.
One can debate whether Trump may have committed this misdemeanor.
That is a good-faith debate. What is not debatable is that the window for such a prosecution closed years ago.
Unless this indictment reveals a previously undisclosed crime, the use of the long-debated bootstrapped offense would defy the rule of law. Nobody is above the law, but nobody is below its protections … including Donald Trump.
Dozens of criminal counts — it’s been reported there are as many as 34 — will make no difference if they merely replicate the same flaws.
There are reports, for example, that Bragg may bring charges based not only on the Daniels payment but money given to former Playboy model Karen McDougal to kill a story on another alleged affair.
However, that payment (from Trump’s friend at the National Enquirer) was also paid in 2016 and raises the same statute of limitations and other issues.
Bragg is operating directly out of Comey’s handbook on “ethical leadership.” After all, it was Comey who joked about how he violated department rules to nail Trump national security adviser Michael Flynn. He delighted audiences with how he told underlings “let’s just send a couple guys over” to trap Flynn.
It was Comey who was fired after former Deputy Attorney General Rod Rosenstein cited him for “serious mistakes” and violating “his obligation to ‘preserve, protect and defend’ the traditions of the Department and the FBI.”
It was Comey who violated federal laws and removed FBI material (including reported classified material) after being fired and then leaked information to the media.
Despite those violations, Comey was heralded by the media and made wealthy on book and speaking tours.
Bragg knows that 62% of people view his case as “mainly motivated by politics,” but (like Comey) he is playing to an eager and generous audience.
The buildup to Trump’s booking has all of the appeals of a thrill kill for Democrats.
It will be another “good day” for Comey and others who put politics above principle in the use of the criminal justice system.
Jonathan Turley is an attorney and a professor at George Washington University Law School.