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.
Halligan’s Place in the Unitary Executive
Everyone agrees that Halligan, as an interim U.S. attorney, is an inferior officer whose appointment may be vested in the head of a department. See United States’ Consolidated Response in Opposition to the Motions to Dismiss Challenging the U.S. Attorney’s Appointment at 1, United States v. Comey, No. 1:25-CR-272, & United States v. James, No. 2:25-CR-122 (E.D. Va. filed Nov. 3, 2025). Everyone also agrees that Congress has in fact vested the appointment of interim U.S. attorneys, under certain circumstances, in the attorney general. See id.; 28 U.S.C. § 546. Finally, everyone agrees that if Halligan was lawfully appointed (a point on which everyone does not agree), it is because Attorney General Bondi so appointed her on September 22. (To deal with the potential invalidity of this action, on October 31 Bondi appointed Halligan to the additional position of “special attorney;” this is not relevant to our current discussion.)
Traditionally, it has been understood that when Congress delegates the appointment of an inferior officer to someone other than the president, it is the appointing official, not the president, who can remove the officer. See Free Enterprise Fund v. PCAOB, 561 U.S. 477, 493 (2010); Myers v. United States, 272 U.S. 52, 119 127 (1926); Ex Parte Hennen, 38 U.S. 230, 259 (1839). Courts have held, moreover, that Congress may limit that power of removal. See Free Enterprise Fund, 561 U.S. at 493; Morrison v. Olson, 487 U.S. 654, 689-91 (1988); United States v. Perkins, 116 U.S. 483, 485 (1886). Even Justice Scalia’s dissent in Morrison accepts this principle. See Morrison, 487 U.S. at 724 n.2 (Scalia, J., dissenting) (Since inferior officers are “subordinate to, i.e., subject to the supervision of, principal officers who (being removable at will) have the President’s complete confidence, it is enough—at least if they have been appointed by the President or a principal officer—that they be removable for cause, which would include, of course, the failure to accept supervision.”). This implies that while the president may be constitutionally entitled to some degree of control over inferior officers, as Scalia suggests, he does not have the constitutional right to exercise that control directly.
I say that this is the traditional view because there is some tension between this view and that of modern unitary executive theorists. Consider the following passage from a recent Supreme Court decision:
Article II provides that “[t]he executive Power shall be vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, § 1, cl. 1; id., § 3. The entire “executive Power” belongs to the President alone. But because it would be “impossib[le]” for “one man” to “perform all the great business of the State,” the Constitution assumes that lesser executive offcers will “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939).
These lesser officers must remain accountable to the President, whose authority they wield.
Seila Law LLC v. CFPB, 591 U.S. 197, 213 (2020) (emphasis added); see also Trump v. Wilcox, 605 U.S. __, slip op. at 1 (May 22, 2025) ((Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf . . . .”).
Thus, the Supreme Court has suggested (indeed, outright declared) that all executive power belongs to the president and only practical considerations keep him from exercising it personally. Congress can provide him with assistants to help him exercise his authority, but it cannot interfere with his control over that authority, which is wielded “on his behalf.” These “lesser officers” (i.e., all principal and inferior executive officers) are simply there to carry out his express or implied instructions and to exercise discretion in accordance with his will. Taken to its logical conclusion, it would seem the president could not only direct lesser officers to take (or not take) particular actions, but he could personally assume their authorities and carry out such actions himself. See Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L. J. 541, 595 (1994) (arguing that “the President has a constitutional right to take action in the place of an inferior executive officer to whom a statute purports to give discretionary executive power”). President Trump could therefore not only be “involved” in the decision to indict Comey, as he surmised, but he could have personally appeared before the grand jury to present the indictment.
To be sure, these views have little foundation in the constitutional thought and practice of the first two centuries of the Republic. See, e.g., Kendall v. United States, 37 U.S. 524, 610 (1838) (“[I]t would be an alarming doctrine that Congress cannot impose any executive officer any duty they think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the discretion of the President.”) (emphasis added); see generally Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696 (2007). Even those authorities most heavily relied upon by modern unitarians, such as Chief Justice Taft’s decision in Myers, do not support their view of presidential control over executive officers. See Myers, 272 U.S. at 135 (“Of course, there may be duties so peculiarly and specifically committed to the discretion of a particular officer as to raise a question whether the President may overrule or revise the officer’s interpretation of his statutory duty in a particular instance. Then there may be duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control.”); see also Ilan Wurman, The Original Presidency: A Conception of Administrative Control, 16 J. Legal Analysis 26, 28 (2024) (explaining that early “pro-removal” viewpoints, expressed by George Washington, James Madison, and the First Congress, among others, reflected the understanding that “the President may remove principal officers but, in the absence of statutory authority, may not direct them in the exercise of their statutory duties”).
Be that as it may, modern unitarians appear to accept not only the proposition that the president may exercise a general administrative control or supervision over the executive branch, but the “alarming doctrine” that he may specifically direct subordinate officers in the exercise of discretion committed to them by law. Some modern unitarians also seem poised to reject the traditional understanding that inferior officers can only be removed by the authority which appointed them. See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1830 n.536 (2023) (“One of us (Prakash) believes that the President has a constitutional power to remove all executive officers, including inferior officers, and that Congress lacks constitutional authority to limit the removal of inferior executive officers. The other (Bamzai) wishes to consider the matter at greater length before arriving at a conclusion.”).
Perhaps Professor Bamzai’s hesitation stemmed from the fact that no president had, at the time he wrote, ever asserted or attempted to exercise the power to remove an officer he did not appoint. (Recall that when President Nixon wanted to remove Archibald Cox as special prosecutor, he did not attempt to do so directly but had to order a series of DOJ officials to do so until he found one that would comply). That changed, however, in 2025 when President Trump purported to remove several inferior officers, including (1) the registrar of copyrights, appointed by the librarian of Congress; and (2) the chief executive officer of the Inter-American Foundation, appointed by the board of directors of that organization. Although most judges to consider these removals have found them to be likely unlawful, one has suggested that the president’s constitutional removal power extends to such inferior officers, at least in the absence of an express statutory provision to the contrary. See Aviel v. Gor, No. 1:25-cv-00778-LLA, slip op. at 4 & n.2 (D.C. Cir. June 5, 2025) (Rao, J., dissenting).
The Comey Indictment
How does all this relate to Halligan’s decision to indict Comey? As a factual matter, it seems obvious that Halligan was appointed interim U.S. attorney with the understanding that she was expected to indict Comey before the statute of limitations expired on September 30, just eight days from her appointment. It is equally obvious that the actual indictment on September 25, a mere three days after her appointment, did not result from (and could not have resulted from) any serious investigation or consideration by Halligan of whether it was justified by the facts and the law.
In theory, however, Halligan was responsible for making the decision to indict, and the government argues her decision is entitled to a presumption of regularity. After all, she took an oath to support the Constitution, as required by Article VI, and to faithfully execute her duties, as provided by 28 U.S.C. § 544. We should not lightly assume that she would violate her oath (or so it might be argued).
But what does Halligan understand her oath to require as it pertains to carrying out the instructions, policies or priorities of the president? U.S. attorneys in past administrations, I suspect, would say it was their duty to make prosecutorial decisions based on the law, facts, and DOJ policies, free from political considerations or pressure. I am not sure Halligan can say that was her duty without contradicting the administration’s position on the unitary executive. After all, if Halligan’s role is to exercise discretion on the president’s behalf and to wield authority that constitutionally belongs to him, it is difficult to see how she could properly disregard his strongly expressed views, much less any explicit or implicit instructions, with regard to the Comey indictment.
Although DOJ denies that Trump “ordered” Halligan to indict Comey, it does not dispute that Trump has repeatedly called for Comey’s prosecution since shortly after firing him as FBI director in May 2017. Government’s Vindictiveness Br. at 12-13. Nor does it deny that on September 20, 2025, the same day he announced his intention to nominate Halligan as U.S. attorney and two days before Bondi named Halligan as interim U.S. attorney, Trump directed this (public, though possibly unintentionally so) message to Bondi:
Pam: I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.” Then we almost put in a Democrat supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so. Lindsey Halligan is a really good lawyer, and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT
Government’s Vindictiveness Br. at 16.
According to the government, this message and Trump’s other statements about Comey do not show vindictiveness, but merely “reflect the President’s view that the defendant has committed crimes that should be met with prosecution.” Id. at 23. Trump’s “social-media posts are clear on why he thinks the defendant should be prosecuted: he thinks the defendant is ‘guilty as hell.’” Id.
We will put aside the question of whether the government has crossed the line between advocacy and gaslighting. Let’s assume Trump’s statements could be plausibly interpreted as reflecting a reasonable and sincere view of Comey’s guilt. It follows that the person who constitutionally holds the entire executive power and is entrusted with the responsibility to take care that the laws be faithfully executed has reasonably determined that there is a “great case” (excuse me, a “GREAT CASE”) against Comey. On what legal basis could Halligan, whose job is merely to assist the president in discharging the powers and duties which belong solely to him, substitute her independent judgment for his? It is true Halligan took an oath to support the Constitution and to faithfully execute her duties, but that must mean, according to the modern unitarians, following the president’s interpretation of the Constitution and his direction as to how to execute her duties. Otherwise Congress, by investing the U.S. attorney with authority to prosecute all criminal cases within her district, would have unconstitutionally delegated a portion of the president’s executive power. Put another way, if Trump was constitutionally permitted to fire the prior interim U.S. attorney (aka the “Woke RINO”) for failure to faithfully execute the laws by indicting Comey, it would make no sense to say that Halligan was constitutionally authorized (or even required) to commit the same offense.
To be sure, Professor Corwin remarked that the Myers case created “the paradox that, while the Constitution permitted the Congress to vest duties in executive officers in the performance of which they were to exercise their own independent judgment, it at the same time permitted the President to guillotine such officers for exercising the very discretion which Congress had the right to require!” Edward S. Corwin, The President as Administrative Chief, 1 J. Politics 17, 50 (1939). But the modern unitarians have resolved this paradox by erasing the concept of independent judgment on the part of executive officers.
Or so it seems. If the Trump administration has a different understanding, it would be interesting to know.
We should also mention here the importance that the unitarians place on the president’s accountability to the electorate. See Collins v. Yellen, 594 U.S.220, 252 (2021) (“The removal power helps the President maintain a degree of control over the subordinates he needs to carry out his duties as head of the Executive Branch, and it works to ensure that these subordinates serve the people effectively and in accordance with the policies that the people presumably elected the President to promote.”); id. (“[B]ecause the President, unlike agency officials, is elected, this control is essential to subject Executive Branch actions to a degree of electoral accountability.”) During his presidential campaign in 2024, Trump promised retribution against his political enemies, and many of his voters presumably consider Comey’s indictment to be a fulfillment of a campaign promise. Under the logic of unitary executive theory, Halligan should have at least taken that into account in deciding whether to bring the indictment. (After all, nothing says government of laws like basing prosecutorial decisions on political popularity).
Of course, even the most extreme unitarians acknowledge some limits on the president’s power to control executive officers. Professors Bamzai and Prakash, for example, explain that “the Constitution implicitly constrains the President’s discretion to exercise constitutional powers, including removal.” Bamzai & Prakash, 136 Harv. L. Rev. at 1837. The president “has no right to exercise powers for private benefit” or “to improve her political standing.” Id. at 1837-38. The president’s actions, including removing executive officers, “must be grounded in reason rather than whimsy or pettiness.” Id. at 1838. In short, the president must believe in good faith that the action in question promotes the public good or serves the public welfare. Id.
These principles provide a potential basis on which Halligan might have rejected the president’s determination that Comey was “guilty as hell.” If she thought the president was acting out of self-serving or political motives, or out of pettiness or vindictiveness, perhaps she could have properly disregarded his expressed views and made an independent determination whether to indict Comey. But the government assures the court that the president’s statements about Comey were not made out of vindictiveness or bad faith, or at least that there is insufficient evidence to establish that they were. So it seems logical to assume that Halligan reached the same conclusion.
Of course, the court may wish to give Halligan the opportunity to personally and directly address how she assessed the president’s statements and what role they played in her decision to indict.