October was a terrible, horrible, no good, very bad month for the Department of Justice.
The worst moment happened on Oct. 5, when the department made a third attempt to prosecute James Comey, the former director of the Federal Bureau of Investigation.
The first attempt, an indictment for lying to Congress, failed when a federal court dismissed the case because the prosecutor was appointed illegally. The second, an indictment for threatening the president by posting a photo online of a collection of seashells on a beach that were arranged to say “86 47” is still pending.
Comey, however, has filed two motions to dismiss — one based on his free speech rights and the other claiming that the government has engaged in vindictive prosecution.
The case is absurd on its face. In a 1969 case, Watts v. United States, the Supreme Court held that a far more explicit threat — the defendant had said that he would resist the draft, but “if they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” —- was nothing more than “political hyperbole” and protected by the First Amendment.
The third attempt is, if anything, even more specious. The Department of Justice filed what is called a criminal information (not an indictment), claiming that Comey leaked classified information that ended up in The New York Times in October 2016.
This is not the first time that the Trump administration has considered bringing this charge. Trump administration prosecutors looked into this incident in 2017 and 2019 and declined to bring charges both times.
But there’s now a new sheriff in town — Todd Blanche, the attorney general of the United States and President Trump’s former personal lawyer — and Todd Blanche does what Trump says.
To be clear, an information isn’t an indictment. It can’t actually start Comey’s case. The Fifth Amendment says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”
Instead, it’s a unilateral filing by prosecutors that has the effect of sometimes tolling (that is to say, stopping) the statute of limitations. It can only actually start a federal felony prosecution if the defendant waives his right to indictment by grand jury, which Comey has not done.
In fact, the Department of Justice admits that it filed the information for the purpose of tolling the statute of limitations. It was filed on the very day that the 10 year statute of limitations was set to expire. In effect, they’re hoping it can serve as a place holder that keeps the case alive until a grand jury finally indicts.
But there’s a problem — a big problem. While some federal criminal statutes allow the department to toll the statute of limitations with an information, this one does not. As Andrew McCarthy, a former federal prosecutor, wrote in National Review, the relevant statute requires an indictment within 10 years. It makes no reference to an information.
In other words, this legal filing is a bad joke. The lawyers who brought it should be ashamed of themselves, and they should be sanctioned by the court.
But that’s not the only legal embarrassment from the last month. On Monday, a federal judge in Manhattan ruled that the Department of Justice acted illegally in 2025 when it fired Maurene Comey, James Comey’s daughter, a highly respected prosecutor in the Southern District of New York.
On Tuesday, a federal grand jury refused to indict Cassidy Hutchinson for perjury. Hutchinson was a key witness in the House of Representatives’s investigation of the events of Jan. 6, 2021.
Hutchinson joins a long line of political opponents that Trump has tried — and failed — to indict, including Attorney General Letitia James of New York and six Democratic lawmakers who had posted a video saying that members of the military had a duty to disobey illegal orders.
It is extremely rare for federal grand juries to refuse to indict. I’ve known prosecutors who’ve gone their entire careers without seeing a “no true bill” (the technical term for the refusal to indict). Under Trump, it’s a regular occurrence.
It gets worse. Also on Tuesday, Zia Faruqui, a federal magistrate judge, eviscerated Trump administration prosecutors after they tried to add a new charge against two former F.B.I. officials charged with lying to Congress without seeking court approval.
The judge ordered the new complaint struck from the record. “It is inappropriate,” he said. “I am surprised that a complaint unsigned by a judge was filed on a docket where I am unaware of that ever happening in this court.”
“Everything you are doing is just giving me more and more concern,” he said.
I’m going to stop there, but even as I do, I feel as if I’m misleading you. I’m stopping because of space, not because that’s the end of the outrages. In case after case after case, the Department of Justice is targeting Trump opponents, making frivolous arguments and engaging in vindictive, meritless prosecutions.
I blame Trump, but I also blame Blanche. He doesn’t understand his own job.
We all know that Trump has an extreme view of executive power that renders him a virtual elected monarch. His administration’s actions extend well beyond conventional “unitary executive theory,” which puts a premium on presidential control over the executive branch. He treats the law as his plaything, deciding on his own whim which laws will be enforced and which ones will not.
It is true that the president is the boss of every cabinet official. He can fire them at will. But it is also true that the attorney general is different from every other member of the cabinet.
Unlike, say, Pete Hegseth, Blanche has three masters, not one. The attorney general and all the lawyers working for him also answer to the judiciary, which not only decides the cases he brings; it also governs the conduct of D.O.J. officials in court. And he also answers to the bar — rules of ethics are binding on every attorney, including government attorneys.
In addition, Trump may be Blanche’s boss, but he is not Blanche’s client. Blanche’s client is the government of the United States, including its various agencies. Blanche owes his fiduciary duty to the government (and, ultimately, the Constitution), not to the president.
In the criminal context, these additional obligations have profound meaning. In a 1935 case, Berger v. United States, the Supreme Court said, “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
Read those words, and then ask yourself — does that sound like Todd Blanche to you?
The attorney general is no ordinary lawyer, and neither are the attorneys who work for the Department of Justice. Trump is their boss, but the Constitution is their true master, and no president can compel them to violate ethics rules or court orders.
Last month, I wrote a newsletter urging a Democratic House and Senate (should the Democrats win control on Tuesday) to follow Senator Elissa Slotkin’s advice and hold the administration’s most malevolent actors accountable for their worst misdeeds. It’s time to resurrect impeachment. I mentioned Pete Hegseth. I should have mentioned Todd Blanche too.
His “high crime” is corrupting the Department of Justice, and only a decisive act of political hygiene can cleanse the D.O.J. of MAGA’s terrible stain.
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