On Thursday, a federal grand jury indicted former FBI Director James Comey for lying to Congress and obstructing a congressional investigation. These charges mark the culmination of President Donald Trump’s yearslong campaign of retribution against Comey, whom he blames for hobbling his presidency by investigating alleged Russian interference in the 2016 election. Trump had already fired Comey from the FBI in 2017, but apparently that was not enough: He also seeks to put his adversary behind bars. To secure an indictment, Trump had to push out qualified prosecutors who refused to charge a spurious indictment and replace them with a wildly unqualified loyalist—all while openly pressuring his Justice Department to charge Comey by any means necessary.

This sequence of events amounts to a shocking attack on the rule of law, obliterating the Justice Department’s traditional and essential independence, transforming it into a blunt instrument of presidential retribution. On this week’s episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the Rubicon-crossing indictment and how Comey can use Trump’s transparent orchestration of the case to defeat the charges against him. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: This indictment is really alarming and, for many of us, actually break-the-glass terrifying. I want to break down the news as crisply as possible, which actually means starting with the murky part: What is it that Jim Comey has been indicted for?

Mark Joseph Stern: The indictment is less than two pages, which is extremely unusual; these things are usually much longer because they usually allege an actual fact pattern of criminality, which didn’t happen here. Instead, the indictment simply accuses Comey of falsely claiming, in testimony before Congress, that he never “authorized someone else at the FBI to be an anonymous source in news reports.” It accuses him of perjury on the grounds that he did authorize an FBI colleague, presumably Andrew McCabe, to leak information to the press—specifically, it seems, about an investigation into the Clinton Foundation.

This whole allegation stems from an exchange Comey had with Sen. Ted Cruz in September 2020. Cruz asked Comey if he had ever authorized a leak, and Comey said no. Trump and his allies have insisted that Comey’s denial was false; according to them, McCabe testified that Comey authorized the leak. So the accusation is that Comey told Congress he never authorized a leak, when in fact he did.

Is there any legitimacy at all to that claim?

No, not at all. It’s demonstrably nonsense, built upon several layers of conspiracy theories. There are two huge problems with the theory that Comey perjured himself. The first is that Justice Department Inspector General Michael Horowitz already exhaustively investigated this episode during Trump’s first term. He concluded that, to the extent there was any conflict between Comey and McCabe’s accounts, “the overwhelming weight of that evidence supported Comey’s version of the conversation.” McCabe’s story, according to the inspector general, was inconsistent and unreliable, while Comey’s story was very consistent and very reliable.

I think that that’s especially telling because Horowitz was deeply critical of the FBI’s Russia probe; Trump often praised Horowitz and kept him in the government when he fired all of those other inspectors general at the beginning of his second term. So this was not an exoneration of Comey from a Comey ally, or a liberal, or a Democrat, or anything like that. This was a Comey skeptic saying even he had to admit that the evidence suggested Comey was telling the truth. The second problem—and this is even more important—is that even if you take McCabe’s account at face value, it still doesn’t prove or even suggest that Comey lied to Congress!

McCabe never said Comey authorized him to leak in advance. That’s just not true. What McCabe said is that he leaked without Comey’s permission, then told Comey afterward, and Comey supposedly expressed approval of the leak after the fact. Now, to be clear, Comey denies all of that. But the point here is that if McCabe’s version were true, it still wouldn’t mean that Comey authorized the leak; it would simply mean that he said that the leak was fine after it had already occurred. No matter who’s telling the truth, Comey did not lie to Congress.

We should now recite the old joke about how easy it is to get a grand jury to indict anything, up to and including a ham sandwich. When the grand jury hears the allegations, Comey’s not in the room. His lawyers are not in the room. The standard of proof is really low.

Yes, and I will also note that this case was brought in the Eastern District of Virginia only because Comey happened to be testifying over Zoom in 2020 since it was in the thick of the pandemic. It could have been brought in D.C.—it would have been so easy for Trump to get Jeanine Pirro, U.S. Attorney for the District of Columbia, to bring these charges. But lately we’ve seen D.C. grand juries refusing to indict individuals who are faced with openly political prosecutions or trumped-up charges designed to suppress dissent. And I think the Justice Department was afraid of losing before a D.C. grand jury. So it brought this case in Virginia instead, hoping they would find more pliant grand jurors. It did, but even then, the grand jury refused to indict on one of the three charges, which is itself very rare. Prosecutors just barely dragged this over the finish line.

Even then, we saw a bunch of career prosecutors in the Eastern District of Virginia declining to prosecute this case, including an incredibly well respected U.S. Attorney. Trump joyously pushed him out, and who took over?

Trump’s own attorney, Lindsey Halligan, took over. She has never prosecuted a case before, and previously practiced insurance law in Florida before joining Trump’s legal team in 2022. Trump installed her in the Eastern District of Virginia on Monday because career prosecutors refused to charge Comey. They actually urged Halligan not to charge him because there was no factual justification to do so; reportedly, Halligan wound up personally presenting the case to the grand jury because nobody else in the office would, which is very weird and unusual. There’s no question that Trump orchestrated this entire prosecution because he is still angry at Comey over the Russia investigation and perhaps other criticisms Comey has made of him. The president overruled the judgment of qualified prosecutors to persecute somebody he personally dislikes.

Halligan’s signature is the only one on this indictment, too. Prosecutors reportedly wrote a memo telling Halligan: “Don’t do this.” She pulled the trigger anyway. Given how transparently bogus this is, does it get dismissed immediately by a judge? Does it even go to trial?

The Supreme Court has, unfortunately, made it very difficult to defeat criminal charges by raising a claim of selective prosecution. It’s a very high bar. But if there were ever a case to clear that bar, I do think it’s this one. There is a massive public record of Trump pushing his Justice Department to charge Comey. Trump has shown, again and again, that he’s doing this because he hates Comey—and personal or partisan animus are never a legitimate basis for a federal prosecution. It is unconstitutional for the government to deprive a person of their liberty because of political animosity against them.

I also think it will be easy for Comey to show that this is a selective prosecution because the Justice Department has declined to charge other people who have actually lied to Congress. That includes Emil Bove, now a federal judge, who seemingly perjured himself when he denied telling his subordinates to defy the courts during his time at DOJ. There were no charges against him—he was elevated to a federal appeals court! There are other similarly situated individuals who get off scot-free for perjury. Now Comey gets indicted for a bogus claim of perjury? This is exactly the kind of thing that a judge would need to see in order to dismiss a case as an unconstitutional selective prosecution. And this case has been assigned to Judge Michael Nachmanoff, a Biden appointee and former public defender who surely knows this part of the law inside and out. I do expect Nachmanoff to closely scrutinize the events that led to this indictment and give very serious consideration to a claim of selective prosecution if Comey brings one.