WASHINGTON — President Donald Trump’s insistence that his attorney general bring charges against three perceived political opponents could backfire if any cases get to court, undermining his effort to see them punished, some legal experts said Monday.
In a social media post Saturday, Trump pressed Attorney General Pam Bondi about three people who’ve raised his ire and who’ve not faced criminal charges to this point: Sen. Adam Schiff, D-Calif.; New York state Attorney General Letitia James; and former FBI Director James Comey.
He mentioned that he’d been impeached and indicted multiple times “OVER NOTHING!”
“JUSTICE MUST BE SERVED NOW!!!” he wrote. He also cited unspecified “statements and posts” he’d read contending that the trio are “‘guilty as hell, but nothing is going to be done.’”
Because of Trump’s exhortation, defense lawyers could argue in court that their clients were targets of selective prosecution and did not receive constitutionally required due process, said Bruce Green, a professor at Fordham Law School who specializes in ethics issues.
“If they’re picking these people not because they’re guilty of something … but because the president is out to get them because they’re Democrats and they made his life miserable previously, that’s an impermissible basis,” Green said.
Another issue is whether Schiff, James and Comey could ever get a fair trial if it were to come to that, said Stephen Gillers, a professor of legal ethics at New York University School of Law.
“He is his own worst enemy,” Gillers said of Trump.
“Sometimes people make statements, but this is the president of the United States telling the court and an eventual jury that the people on trial before them are guilty. I can’t imagine that a court would let that go to a verdict. The prejudice from that kind of statement is enormous,” Gillers said.
John Walsh, who served as the U.S. attorney in Colorado for six years ending in 2016, said in an interview: “It certainly gives the defense an argument that the charges are politically motivated and not based on the merits and the evidence and the argument. Some judges might find that persuasive depending on the motions that take place prior to trial.”
But he added that even if the Justice Department understands this reality, officials could be pursuing a strategy that he described as, “Investigation is the punishment.”
Enduring a federal investigation is costly to the target and can bring significant harm to one’s reputation, he said.
“An investigation is a very serious thing against professionals, yes, there is a cost to even just defend yourself,” he added.
Trump’s extraordinary weekend message to Bondi — “Pam,” as he called her — put the attorney general in a tough spot, said Jill Wine-Banks, a former general counsel to the U.S. Army and an assistant special prosecutor in the Watergate scandal of the early 1970s.
If Bondi accommodates the president and the Justice Department seeks indictments against Schiff, James and Comey, “who’s going to believe it wasn’t done for political purposes?” Wine-Banks asked rhetorically. “And if she doesn’t, she’s going to get fired. So, it’s a lose-lose, no matter what.”
Trump tempered his message to Bondi later on Saturday.
He posted that Bondi was doing a “GREAT job” while also later telling reporters in a press gaggle: “If they’re not guilty, that’s fine. If they are guilty, or if they should be judged, they should be judged. And we have to do it now.”
All three of the people Trump singled out have rankled him for different reasons.
Comey led an investigation into Trump’s possible ties to Russian leadership, which concluded that Trump’s campaign did not collude with Russian operatives. Trump fired Comey five months into his first term. Comey declined comment Monday.
Schiff, then a House member, led the first impeachment of Trump during the president’s first term. Schiff posted a response to Trump on social media: “There’s no hiding the political retaliation and weaponization. It’s all out in the open.”
James brought a successful civil suit against Trump in 2022 that accused him of overvaluing assets, including real estate, in loan applications. The suit’s financial penalty against Trump was later voided.
James’ office declined a request for comment.
At a press briefing Monday, White House press secretary Karoline Leavitt amplified Trump’s condemnation of the trio.
“You look at people like Adam Schiff and like James Comey and like Letitia James,” she said, “who the president is rightfully frustrated.”
She added that Trump “wants accountability for these corrupt fraudsters who abused their power, who abused their oath of office to target the former president and then candidate for the highest office in the land.”
Trump has long contended that he was a victim of a weaponized judicial system when Joe Biden was in office. In his inauguration speech on Jan. 20, he pledged to end such practices.
“Never again will the immense power of the state be weaponized to persecute political opponents — something I know something about,” he said. “We will not allow that to happen. It will not happen again.”
Bondi made a similar promise during her confirmation hearing before the U.S. Senate in January.
“Under my watch, the partisan weaponization of the Department of Justice will end,” she said. “America must have one tier of justice for all.”
Now, though, critics worry that Trump is erasing post-Watergate norms that were supposed to shield prosecutors from political interference.
Rep. Don Bacon, R-Neb., told NBC News in a statement: “The president should not be directing the Attorney General to prosecute those who pursued him over the last six years. Lawfare is corrosive to a democracy and he is doing exactly what he has accused the Democrats of doing to him. We need to stop the cycle of lawfare and escalation. His public statements to the attorney general were not wise and they undermine the citizens’ confidence of our legal system.”
A worrying development came last week, critics said, when the federal prosecutor tasked with investigating mortgage fraud allegations against James resigned after Trump said he no longer wanted him to serve in that position. (Trump said he fired the prosecutor, Erik Siebert.)
Trump administration officials had been pressing Siebert to investigate potential mortgage fraud charges against James.
Two federal law enforcement sources say prosecutors did not believe they had enough evidence to charge James with mortgage fraud over a Virginia home she purchased for her niece in 2023.
Those same sources said prosecutors felt there was not enough evidence to charge Comey regarding allegations that he lied to Congress in 2020 about FBI investigations into the 2016 election.
Sen. John Kennedy, R-La., a member of the Judiciary Committee, told NBC News: “‘Two wrongs don’t make it right but they do make it even’ is the sort of thing that happens in countries whose Powerball jackpot is 287 chickens and a goat. It’s not supposed to happen in America.”
“President Biden’s administration started this ‘lawfare’, as the media calls it, and I worried then that they had unleashed spirits they would be unable to control,” he added. “I questioned Attorney General Bondi about this in her confirmation hearing, and she agreed with me. Any prosecution of a public official has to be based on objective, compelling evidence of criminal behavior, not based on that official’s political ideology.”