DOJ's Unconventional Charging Procedures Against Trump Foes Reveal Politically Motivated, Press-Release-Driven Prosecutions
Source: Jonathan S. Ross. "Trump’s DOJ targets Comey, Hunter Biden FBI agents without grand jury.." November 3, 2026. slate.com
The Gist
The author, a former DOJ lawyer, says the Justice Department started two cases against Trump critics in odd ways that hurt its own chances and don't make legal sense. The best explanation, he argues, is that the DOJ wanted dramatic public documents that please the president rather than sound prosecutions. He sees this as a sign the DOJ now serves the White House instead of enforcing the law evenhandedly.
Conclusion
The DOJ's use of unusual charging procedures (a criminal complaint with a lengthy affidavit against Floris and Benavides, and an information against Comey) is best explained by political motives, namely generating publicity for the president and his allies, rather than legitimate law-enforcement strategy. This signals a DOJ that has become a mouthpiece of the White House rather than an evenhanded enforcer of criminal law.
Premises
- Criminal complaints are normally reserved for urgent situations in which a dangerous or flight-risk defendant must be detained before the grand jury can act.
- In the Floris and Benavides case, neither defendant appeared to be a threat or flight risk, as shown by the government's decision not to seek detention.
- Using a complaint was strategically costly for the government because it triggered a preliminary hearing with cross-examination of the government's agent, and did not avoid the need for a grand jury, so it offered no apparent legitimate advantage (and the case ultimately failed at that hearing).
- The 27-page complaint affidavit gave a detailed narrative far beyond what a one-to-two-page indictment would contain, effectively functioning as a press release that supplies material for commentators, candidates, and the president.
- In the Comey case, the government filed an information that cannot proceed without Comey waiving grand jury review (which he is unlikely to do), and its stated rationale of tolling the statute of limitations rests on legally shaky grounds that conflict with the plain language of the Espionage Act's limitations provision.
- The best remaining explanation for choosing these unconventional and strategically unwise methods is that they were designed with a public and political audience in mind.
Assumptions
- If no legitimate legal or strategic rationale can be identified for an unusual prosecutorial choice, a political motive is the most plausible explanation.
- The author has considered and correctly dismissed alternative explanations (e.g., fear of grand jury refusal, statute-of-limitations concerns) based on public information.
- The government's attorneys are competent enough that unwise choices are more likely to reflect intentional political aims than error or poor judgment.
- The author's past DOJ experience gives reliable insight into norms and into what constitutes deviation from them.
- The two cases are representative of a broader pattern, so they justify generalizing about the DOJ's future conduct.
- A prosecution designed partly to generate publicity is improper, even if the underlying charges have merit (the author explicitly sets aside the merits).