James Comey’s real ‘crime’? Daring to put the law before loyalty to Trump | Lawrence Douglas

In 1931, an exceptionally talented young Berlin attorney named Hans Litten summoned Adolf Hitler to testify in a criminal case. Litten represented four victims of a brutal assault perpetrated by members of Hitler’s Sturmabteilung, or SA, on a dance hall frequented by leftist workers; by the time the assault ended, three people were dead. At trial, the defense sought to portray the SA as a disciplined political organization, under orders from Hitler to use force only as self-defense.

In his three-hour cross-examination of the head of the Nazi party, Litten managed what precious few dared to attempt. Hitler had expected the young lawyer to be intimidated; instead, Litten aggressively and skillfully dissected him under oath, reducing the supposedly gifted orator to a stammering rage. In trapping Hitler in contradictions and exposing him as an inveterate liar, Litten also made clear the Nazis’ goal of destroying the Weimar Republic. Hitler left the witness stand rattled and humiliated, henceforth forbidding Litten’s name to be uttered in his presence.

Hitler’s revenge came two years later, barely a month after he had been installed in power. In the wake of the Reichstag fire – an arson attack on the parliament building – and relying on a hastily drafted emergency decree for the “protection of people and state”, Hitler ordered the arrest and “protective custody” of numerous perceived political enemies, including Litten. Over the next five years, as he was shuttled from concentration camp to concentration camp, Litten was repeatedly beaten and tortured. In 1938, with no prospect of release, he took his own life. His crime: trying to protect the role of law and a constitutional democracy from a would-be authoritarian.

The United States in 2025 is not Germany in 1933. That said, Litten’s experience has a disturbingly familiar ring. Last week, the US attorney’s office for the eastern district of Virginia (EDVA) announced that the former FBI director James Comey had been indicted for allegedly lying under oath to a congressional committee. The case against Comey is so flimsy that Erik Siebert, Trump’s hand-picked chief federal prosecutor for the post, balked at filing charges. Siebert’s fair assessment predictably earned him the ire of the president. “I want him out,” Trump fumed, and so Siebert resigned before he could be fired, vacating the position he had occupied for barely eight months.

Trump hastily named a replacement: Lindsey Halligan, a member of Trump’s coterie of personal lawyers who now occupy some of the most pivotal positions within the Department of Justice. Never mind that Halligan has no prior prosecutorial experience and that the head of the EDVA oversees the prosecution of many of the nation’s most complicated and sensitive cases involving national security and financial crimes; Halligan’s great qualification was apparently her willingness to do what Siebert would not: indulge Trump’s hankering for revenge. Her indictment of Comey, handed down scant days before the five-year statute of limitations on the alleged crimes was to expire, only confirmed Siebert’s doubts. Law students invariably learn the old canard that any decent prosecutor can get a grand jury “to indict a ham sandwich” – but maybe not Halligan: the grand jury refused to indict on one of the three counts that the prosecutor submitted.

Trump greeted the news of the two-count indictment by crowing on Truth Social: “JUSTICE IN AMERICA!” – which might be an apt, if inadvertently Orwellian, description of the present state of the rule of law in our nation. The case is certainly about score-settling, but it’s also far more disturbing than that. Let’s assume for the moment that Trump was unfairly targeted for investigation during his first term; it would still be unseemly for a sitting president to respond to one injustice with another. But the fact is that the FBI’s investigation into Russian interference in the 2016 election – the source of Trump’s crusade against Comey – was not a politically motivated “witch-hunt” (Trump’s favorite go-to term of impugnment to discredit attempts to hold him to account). Instead, it revealed a “sweeping and systematic” campaign to interfere with the 2016 election.

Comey’s true “crime” recalls Hans Litten’s. He dared to show fidelity to his office and to the law, and not to the Great Leader. This is not to say that Comey risks sharing the fate of the intrepid German lawyer. In publicly declaring Comey “guilty as hell” and in transparently interfering in the legal process, Trump has handed the judge a reason to simply dismiss the case as an exercise in vindictive prosecution. Should Comey go to trial, the case’s obvious weaknesses might well result in an acquittal. And even if Comey were to be convicted and sent to prison, the US does not, at present, operate a system of concentration camps where political opponents face systematic torture.

But that is cold comfort. The fact remains that Comey is being persecuted, not prosecuted, for putting service to the nation above obedience to a man. As if following a script from the authoritarian playbook, Trump is making Comey pay for his act of constitutional fidelity. What should disturb all Americans is the ease with which Trump, aided by his craven and opportunistic legal lackeys, has turned the proudly independent justice department into a tool of authoritarian consolidation.

• Lawrence Douglas teaches at Amherst College. His newest book, The Criminal State: War, Atrocity, and the Dream of International Justice, will be published in the spring of 2026