This week, President Donald Trump did something blatantly unconstitutional. In broad daylight, he pressured the Justice Department to prosecute one of his top political enemies, former FBI Director James Comey. Days later, the DOJ obliged, securing an indictment against Comey on dubious charges that many in the department reportedly opposed.
This was an extraordinary abuse of power that meets the standard for presidential impeachment. I briefly made that case on CNN last night (see above).
The U.S. Constitution is pretty clear: a president can be removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” While that phrase doesn’t require a statutory crime, it does encompass serious abuses of power that threaten the constitutional order. Using the machinery of federal law enforcement to target political opponents is precisely what the framers had in mind.
In Federalist 65, Alexander Hamilton wrote that impeachable offenses “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” That’s what Trump has done. He’s not merely expressing a negative opinion about Comey. He’s issuing de facto orders to the Attorney General to jail a critic, and the DOJ is responding.
Unlike Trump’s first two impeachments (one for pressuring a foreign leader to dig up dirt on a political rival, and the other for inciting a mob to attack the Capitol), this one comes with an added layer of overt criminality.
Selective or vindictive prosecution — where the government targets an individual not based on evidence, but based on personal animus or political retaliation — violates the Fifth and Fourteenth Amendments. The Due Process Clause prohibits the federal government from abusing its prosecutorial power for improper purposes, while the Equal Protection Clause (as applied to the federal government through the Fifth Amendment) bars discriminatory enforcement of the law. The evidence is overwhelming that Comey was singled out for prosecution because of his role in investigating Trump and not because of the strength of the case.
The Founders feared this. They’d seen monarchs weaponize prosecution to silence dissent and corrupt the rule of law. That’s why they included impeachment as a safeguard. When a president turns the justice system into a tool of vengeance, Congress has a constitutional duty to act.
Whether or not Comey’s actions merit legal scrutiny is beside the point. He never would have been charged if it wasn’t for the president’s direct and norm-shattering political interference. Rather than let the system work from the bottom up by starting with evidence that builds toward a charging decision, this process started with the president declaring his enemy was guilty and directing his people to find evidence to prove it.
That is — definitionally — autocratic conduct.
The House of Representatives, especially any member who claims to uphold the Constitution, should introduce articles of impeachment in the wake of this action. That may be politically unlikely, given the repeated impeachments of Donald Trump. But it’s constitutionally necessary. Impeachment exists not just for corruption or criminality, but for this type of abuse of power: turning federal law enforcement into a political weapon.
This week marked a line-crossing moment for American democracy. And that’s based on what we know so far. In the months to come, we’re sure to learn even more about the criminal conspiracy within the Trump administration to deprive James Comey and others of their constitutional rights as a matter of revenge, not justice. Malfeasance of this magnitude undercuts the rule of law as a whole. If this doesn’t merit impeachment, then the word has no meaning.
