Correction: Bannon and Navarro were not pardoned for contempt of Congress. Trump pardoned Bannon before leaving office in 2021, but that pardon did not cover Bannon’s subsequent contempt of Congress. Navarro has not been pardoned at all. Thanks to @fedjudges on X for the correction.
As you may have heard, James Comey, the former FBI director, deputy attorney general, and 1985 graduate of the University of Chicago Law School, has been indicted for lying to Congress. This is a rarely prosecuted crime. To my knowledge only one person this century has been tried and convicted for congressional perjury or false statements (three others have pled guilty). That person is Roger Stone, who was pardoned by President Trump. Only two people this century have been tried and convicted for the related crime of contempt of Congress. Both of them, Steve Bannon and Peter Navarro, were also pardoned by Trump. [see correction] (Navarro currently works in a senior position in the Trump administration). This is not to mention the hundreds of individuals Trump pardoned for offenses (including obstruction of a congressional proceeding) related to the January 6, 2021 attack on the Capitol. For some reason, however, the Trump administration has decided that protecting the integrity of congressional proceedings is very important in Comey’s case.
Comey thinks he knows the reason. He has filed a motion to dismiss the indictment for vindictive and selective prosecution. The government has responded indignantly that there is no evidence that the relevant decisionmaker in the case harbors any animus toward Comey:
To start, the relevant analysis is whether the “prosecutor charging” the offense “harbored vindictive animus.” Here, that prosecutor is the U.S. Attorney. Yet the defendant doesn’t present any evidence that she harbors animus against him. Instead, he says that he doesn’t need any such evidence because his claim “turns on the animus harbored by the official who prompted the prosecution.” And, according to him, that is the President. As discussed below, the President does not harbor vindictive animus against the defendant in the relevant sense. Before reaching that issue, however, the Court should determine whether the defendant has offered sufficient evidence to find that the President displaced the U.S. Attorney as “the ultimate decision-maker” in bringing this prosecution.
United States’ Response in Opposition to Defendant’s Motion to Dismiss Indictment Based on Vindictive and Selective Prosecution at 20, United States v. Comey, No. 1:25-CR-272-MSN (E.D. Va. filed Nov. 3, 2025) (citations omitted) (hereinafter “Government’s Vindictiveness Br.”).
It is noteworthy that the brief does not dispute that the president could displace the U.S. attorney as the ultimate decisionmaker, only that he did so. Thus, in response to Comey’s argument that the relevant vindictive actor is “the head of the Executive Branch” who is the U.S. attorney’s “ultimate supervisor,” the government concedes that this “might be a legitimate” point “if the defendant had evidence that the President ordered his prosecution.” Id. at 22. In support of the contention that the president did not “order” the prosecution, it cites a statement Trump made in response to a reporter’s question on September 25, the day that Comey was indicted:
I can’t tell you what’s going to happen because I don’t know yet. Very professional people, headed up by the Attorney General, [Deputy Attorney General] Todd Blanche and [U.S. Attorney] Lindsey Halligan . . . they’re going to make a determination. I’m not making that determination. I think I’d be allowed to get involved if I want, but I don’t really choose to do so.
Government’s Vindictiveness Br. at 16 (emphasis added).
The government contends that the relevant decisionmaker is Lindsey Halligan, who was appointed as interim U.S. attorney by Attorney General Pam Bondi on September 22, 2025. Three days later Comey was indicted.
According to the government, Halligan made the decision to indict Comey based on her 72 hours (or less) of experience on the job. This may be difficult to believe as a factual matter, but the government suggests that it is the appropriate legal framework with which to evaluate Comey’s allegation of vindictiveness. It points out that under the law “a U.S. Attorney is tasked with deciding what offenses to prosecute in her district.” Government’s Vindictiveness Br. at 17. In making such decisions she enjoys “broad discretion” and her exercise of that discretion is entitled to a presumption of regularity. Id. The implication is that absent an express order or some other direct intervention by the president, the U.S. attorney is expected to exercise independent judgment in making prosecutorial decisions.
The question I have is whether that legal framework is consistent with the unitary executive theory that the administration advances in judicial proceedings and which seems to be favored by a majority of the current Supreme Court. We will turn to that now. Continue reading “Lindsey Halligan and the Unitary Executive”