So Much For the Unitary Executive

This post is exclusive to paid subscribers because it’s our third piece of the week. If your circumstances permit, I hope you’ll consider becoming a paid subscriber—your support is what makes in-depth analyses like this possible. And to paid and free subscribers alike, thank you for being part of the Fed Head community.

Everyone knows why James Comey is under indictment for a second time, and it has nothing to do with seashells or idiomatic meanings of “86.”

On Thursday, the Department of Justice filed a series of responses to Comey’s several motions to dismiss the indictment accusing him of threatening the president by posting a picture of a configuration of seashells arranged to read “86 47.”

The main action in Judge Louise Flanagan’s courtroom is likely to be on Comey’s motion to dismiss for vindictive and selective prosecution. And the government’s response to that motion is a study in sophistry.

The government’s basic move is to say that the local prosecutor who brought the charges had nothing personal against Comey—which may well be true. But it is a brazen attempt to make the elephant vanish from the room. And the elephant here is the President of the United States. Comey is in jeopardy because and only because Trump has it in for him, entirely unconnected to any alleged crime.

Now the Department, which has championed Trump’s right to order up reprisal prosecutions, is hiding behind a law fashioned for a bygone era, when presidents didn’t tell the Department whom to go after.