The Comey Indictment Response: When 'Who We Are' Omits What the System Permits

The Claim

In response to an unspecified indictment, former FBI Director James Comey issued a statement declaring, "This is not who we are as a country." The framing invokes national identity—a moral consensus that supposedly stands apart from and above the legal mechanism that produced the indictment. The statement presumes that the indictment represents an aberration, a violation not necessarily of law but of some shared understanding about the proper boundaries of prosecutorial discretion.

The claim contains no citation to constitutional text. It does not reference a specific statute. It appeals instead to collective self-conception: we would not do this because it is inconsistent with who we believe ourselves to be.

The Mechanism Actually in Place

The United States Constitution grants Congress, under Article I, Section 8, the authority to "constitute Tribunals inferior to the supreme Court." It vests, in Article II, Section 2, the President with the power to "nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court, and all other Officers of the United States." Prosecutorial authority flows from the Executive Branch under Article II, Section 3, which obligates the President to "take Care that the Laws be faithfully executed."

No clause constrains whom may be indicted based on their former position, reputation, or service. The Constitution establishes procedures—grand jury indictment for capital or "infamous" crimes under the Fifth Amendment, trial by jury under the Sixth—but it does not exempt categories of persons. The Framers, having lived under a system where proximity to power conferred immunity, deliberately chose not to inscribe such exemptions.

The Federal Rules of Criminal Procedure, adopted pursuant to the Rules Enabling Act of 1934 and codified at 18 U.S.C., govern how indictments proceed. Rule 6 establishes grand jury procedures. Rule 7 defines the indictment itself. Neither rule contains a provision requiring prosecutors to consider the political prominence, prior government service, or public reputation of a potential defendant before presenting charges to a grand jury.

What the Record Shows

The institutional record documents repeated instances where individuals holding or having held significant positions within the federal government were indicted, tried, or investigated without constitutional crisis.

In 1974, Vice President Spiro Agnew resigned after pleading no contest to tax evasion charges while in office. The indictment proceeded. The constitutional order held.

In the aftermath of Watergate, multiple high-ranking officials—including Attorney General John Mitchell, White House Chief of Staff H.R. Haldeman, and domestic policy chief John Ehrlichman—were indicted, convicted, and imprisoned. The prosecutions were not treated as violations of national identity. They were treated as applications of existing law.

In 2005, Vice President Dick Cheney's Chief of Staff, I. Lewis "Scooter" Libby, was indicted on charges of perjury and obstruction of justice. The case went to trial. Libby was convicted. At no point did the constitutional system signal that indicting a senior official was categorically inconsistent with "who we are."

The pattern is consistent: the legal system has repeatedly treated senior officials as subject to the same criminal processes as any other person. The record does not support the claim that indicting prominent figures represents a departure from precedent. It is the precedent.

The Gap

Comey's statement omits this history. It treats the indictment as a deviation when the structure permits—and the record demonstrates—exactly this kind of action. The gap is not between law and practice but between the implied norm Comey invokes and the explicit authority the Constitution grants.

The statement also omits the relevant constraint already in place: the grand jury. An indictment requires a grand jury to find probable cause that a crime occurred. This is not a unilateral executive act. It is a procedural checkpoint involving civilians drawn from the community. If the indictment is illegitimate, the implication is that the grand jury system itself failed—a claim Comey does not make.

What remains absent is any specification of which constitutional boundary was crossed. If the indictment is improper, the objection must identify the rule that prohibits it. Comey's framing substitutes sentiment for structure. It gestures toward a norm without anchoring that norm in text, precedent, or procedure.

What the Gap Reveals

The gap suggests one of two possibilities.

First: Comey may believe an unwritten norm exists that constrains prosecutorial action against certain individuals, even where legal authority is clear. If so, the structural question is whether such norms bind, and what happens when they conflict with written authority. Norms depend on consensus. If the consensus fractures, the norm becomes a preference, not a rule.

Second: Comey may be objecting not to the legality of the indictment but to its propriety—a political or prudential judgment about whether the system should exercise its authority, even if it lawfully may. This is a legitimate debate, but it is not a constitutional objection. It is an appeal to discretion, which is by definition not mandated.

The structural problem is that neither possibility provides a mechanism for enforcement. Norms without teeth are suggestions. Discretion exercised differently by different actors becomes inconsistency, not a violation.

The Accountability Mechanism

If the indictment is improper under existing law, the remedy is judicial. The defendant may move to dismiss. A court may review the sufficiency of the indictment, the validity of the grand jury proceedings, or the application of the relevant statute. If the law was misapplied, the system contains a correction process.

If the indictment is lawful but improvident, the remedy is political. Voters may register their objection through elections. Congress may alter the statute. The public may demand different standards.

What the system does not provide is a mechanism to invalidate lawful actions based solely on appeals to collective identity. "This is not who we are" is a rhetorical move, not a legal standard. The Constitution does not contain a "who we are" clause.

The record is clear. The indictment, absent evidence of procedural defect, operates within the boundaries the Framers established. If those boundaries are now uncomfortable, the discomfort reflects not a violation of the system but its operation as designed.