Would that be illegal or unlawful on Blanche’s part? Would Blanche be subject to sanctions or accountability? The answers turn out to be complicated. And right now, Democrats are starting to think them through. Because if they win back one or both chambers of Congress, passing DOJ reform will be critical, as part of an agenda to “fascism-proof” the system against future authoritarian presidents.
Blanche’s quotes on NBC News over the weekend about the Comey prosecution underscored the urgency of this for Democrats. The DOJ is prosecuting Comey for allegedly threatening the president, based on his social media posting of an image of seashells arranged to spell “86 47,” which doesn’t remotely meet the statutory requirement for such a threat to be chargeable.
The naked absurdity of this has been witheringly dissected everywhere. The term “86” doesn’t even mean “assassinate.” The relevant statute requires prosecutors to prove that a reasonable person would have understood the phrase as a true threat to the life of the president—and that Comey actually did intend to convey that threat. It’s always possible the DOJ has amassed devastating evidence of this intent, but no experts think it’s likely.
You’ll recall, of course, that Trump has publicly ordered the DOJ to prosecute many of his enemies, from Comey to New York attorney general Letitia James to Federal Reserve chair Jerome Powell. He frames this as retribution, meaning he’s demanding prosecutions regardless of what the evidence shows.
In our interview, Schiff said that if granted the majority, Democrats will explore legislative fixes that could limit presidential pardons of prosecutors who carry out corrupt prosecutions, among other things. Schiff allowed that there may be separation-of-powers problems with limiting a president’s ability to direct prosecutions, but he said his underlings might be further constrained.
“I do think there’s a way of legislating this that would be constitutional,” Schiff told me, noting that the goal should be “codifying guardrails” into “strict and legally enforceable protections against any future president abusing the office the way Trump has.”
Meanwhile, the Center for American Progress is exploring ideas like new evidentiary burdens for DOJ to meet in cases involving people explicitly targeted by the president for prosecution. Brian Beutler has suggested that the next attorney general launch a major post-Trump fumigation of the department—with concrete accountability for its abuses at its center. Relatedly, law professor Stephen Vladeck suggests an overall posture for Democrats: “If you’re going to act in a way that’s grossly unethical and in violation of individuals’ rights, we’re going to do whatever we can to hold you accountable.”
That’s seconded by Ken White, a federal criminal defense attorney who writes a well-regarded blog about the law. He called the Comey prosecution “the single most flagrantly meritless indictment I’ve seen in my entire career” and added that it occasions deeper congressional reforms.
The point here is to establish a forward-looking mindset: That dealing with these levels of flood-the-zone lawlessness and abuses of power will require future Congresses to think big. Richard Nixon’s abuses exposed the need for far-reaching post-Watergate reforms. But much of that architecture—along with many norms of prosecutorial good faith and independence it inspired, at least as an ideal—have broken down in the face of an even-more-lawless president.
-Nixon Congresses were populated by a new generation of eager reformers known as “Watergate babies.” -Trump reformers will have to make their predecessors look like, well, babies—by outdoing them in determination, ambition, inspiration, and purpose.
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