About two decades ago, Justice Antonin Scalia went on a duck hunting trip with then-Vice President Dick Cheney. This trip became an issue because the Supreme Court was considering a case challenging some of Cheney’s official actions within the Bush administration, and a party to that case asked Scalia to recuse because of his personal relationship with the vice president.
In his opinion denying this request, Scalia argued that requiring justices to “remove themselves from cases in which the official actions of friends were at issue would be utterly disabling.” Many of the justices, Scalia explained, “reached this Court precisely because they were friends of the incumbent President or other senior officials,” and his opinion described several past examples of close relationships between justices and presidents or other top members of the executive branch.
Setting aside the question of whether Scalia’s argument against recusal was persuasive, his opinion is an accurate description of elite Washington culture. The pool of people who receive high-level presidential appointments is fairly small, and the pool of Republicans who serve in those roles is even smaller. Serving in government means endless meetings, as competing agencies hash out their differences and competing political factions jockey for position. By the time someone rises to the highest offices — a justice or an agency leader — they are likely to be well-acquainted with their peers and friends with many of them.
Which brings us to Trump’s recent decision to bring criminal charges against former FBI Director James Comey — charges that are so weak that President Donald Trump had to fire a US attorney and install a loyalist to secure an indictment.
Although Democratic President Barack Obama appointed Comey to lead the FBI, largely because Obama wanted to avoid a difficult confirmation fight with Senate Republicans, Comey was a Republican for most of his career (although he announced that he’d left the party during Trump’s first term). He served as deputy attorney general, the Justice Department’s No. 2 job, under Republican President George W. Bush — and that was after Bush appointed him to a prestigious job as the top federal prosecutor in Manhattan.
In his many political jobs, Comey most likely worked directly with at least two of the sitting justices. His tenure as deputy attorney general overlaps with Justice Neil Gorsuch’s tenure in a senior Justice Department role. And Comey worked on a Senate investigation into the 1990s-era Whitewater scandal at the same time that Justice Brett Kavanaugh worked on independent counsel Ken Starr’s investigation into the same matter.
Meanwhile, for the reasons Scalia laid out in his recusal opinion, most of the justices undoubtedly know Comey. He was a top official in two presidential administrations, and one of the preeminent Republican lawyers in Washington, DC. Comey is cut from the exact same cloth as each of the Republican justices.
So I hope these similarities are on these justices’ minds as they consider whether to rein in Trump’s growing attempts to weaponize the Justice Department against his political foes. Trump isn’t just targeting Democrats, and he isn’t just targeting people from very different backgrounds than the justices themselves. Trump is now targeting people exactly like the Republican justices. And if they don’t stop behaving as sycophants for this administration and take steps to restrain Trump now, the justices themselves could be next.
Trump almost certainly owes his presidency to James Comey
One of the sickest ironies of Trump’s prosecution of Comey is that, without Comey, it is very unlikely that Trump would have become president in the first place.
When Hillary Clinton became secretary of state in 2009, it was common for the nation’s top diplomat to conduct government business using a personal email account; both of Clinton’s Republican predecessors did so, and Clinton followed the same practice. A top official in Clinton’s State Department later explained that the secretary of state often needs to communicate quickly with other senior diplomats, and this is impossible if she complies with the rigid security rules that govern classified communications among more junior government employees.
Yet Clinton’s decision to conduct work business using a personal email account somehow became the biggest story of the 2016 election cycle, and while the media also bears blame, Comey was a major reason.
After the FBI concluded that Clinton should not be prosecuted for using a personal email account, Comey, as FBI director, nonetheless called a press conference labeling her actions “extremely careless.” Then, just days before the 2016 election, he again made the emails the biggest story in the country by sending a cryptic letter to Congress announcing that the FBI was reopening its investigation into Clinton. (The second investigation was swiftly closed.)
These actions violated longstanding Justice Department protocols. As former deputy attorneys general Jamie Gorelick and Larry Thompson wrote at the time, the DOJ “operates under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election.” Comey violated norms against “creating unfair innuendo to which an accused party cannot properly respond.”
Indeed, these norms aren’t simply a good idea; they are rooted in the Constitution. If Clinton had been charged with a crime, she would have received a trial and been given a formal process where she could seek vindication. But, when Comey used the prestige of his office to disparage her, he denied her due process. She had no way to formally repudiate Comey’s allegations against her.
The end result was that, while Clinton won nearly 3 million more votes nationwide than Trump, she barely lost the key states of Wisconsin, Michigan, and Pennsylvania. The race was so close that Comey’s intervention against Clinton likely tipped the balance. If Comey had complied with the Justice Department’s safeguards against disparaging unindicted individuals and interfering with elections, Donald Trump would most likely be a washed-up real estate developer today.
There’s an obvious lesson here for the Republican justices
One might think that Trump would be eternally grateful to Comey for more or less handing him the presidency. Instead, Trump lost faith in Comey after the FBI investigated possible ties between Trump’s 2016 campaign and the Russian government in 2017, and Trump eventually fired Comey from his position at the top of the FBI.
Comey has been on Trump’s enemies list ever since. Just last week, Trump appears to have accidentally posted an order to Attorney General Pam Bondi on Truth Social, Trump’s social media site. The order instructed Bondi to target Comey, Sen. Adam Schiff (D-CA), and New York’s Democratic Attorney General Letitia James.
Trump’s decision to target Comey reveals — in starker form than ever — that he will turn on people who’ve benefited him in the past the moment he thinks they have raised a hand against him. And he is willing to use the full power of the United States government against people who’ve displeased him.
All of which is a long way of saying that maybe the Republican justices should have thought twice before they said in July 2024, in the Court’s benighted Trump immunity decision, that Trump is immune from prosecution even if he orders the Justice Department to target someone “for an improper purpose.” The Republican justices may bear as much blame for Trump’s charges against Comey as Comey bears for the entire Trump presidency.
For the moment, at least, it is not too late for the Supreme Court to reverse course. The Court has several cases pending before it right now where Trump seeks sweeping authority over US fiscal and monetary policy. The Republican justices do not need to give it to him. Nor do they need to play ball when Trump’s prosecutions of his political enemies reach the Supreme Court.
But, if they do play ball, they will have no excuse if Trump later comes for them. The indictment of James Comey is a warning. Even Republicans who have done extraordinary things to benefit Donald Trump are not immune from his vindictiveness.
