Advisory Opinions — "Selective Prosecutions"

Podcast by The Dispatch
Hosts: Sarah Isgur & David French
Date: September 30, 2025

Episode Overview

This episode of Advisory Opinions centers on the indictment of former FBI Director James Comey, using it as a lens to examine themes of selective prosecution, politicization of the Department of Justice, and the broader questions of executive power post-Watergate. The hosts also discuss recent Supreme Court happenings, their thoughts on a notable dissent, and evolving debates over the unitary executive theory. The general tone is conversational but deeply analytical, with frequent references to history, legal doctrine, and current events.

Main Topics & Key Discussion Points

1. The Jim Comey Indictment

[01:25–18:21]

• Grand Jury Dynamics and Indictment Details

  • Sarah clarifies facts: Comey was indicted on two out of three counts by a narrow grand jury majority (14 of 23 jurors), "pretty messy for DOJ to get a bare majority basically of the grand jurors" [01:25].
  • Explains grand jury process and jokes about indicting a "ham sandwich."
  • Indictment is a “bare indictment, not a speaking indictment” — meaning it offers few details compared to special cases, such as Trump’s January 6th charges.

• Specific Counts Against Comey

  • Count 1: Comey allegedly lied to Congress about not authorizing anonymous sources in FBI news leaks regarding the Hillary Clinton probe.
  • Count 2: Obstruction — "did corruptly endeavor to influence, obstruct and impede" a Senate Judiciary Committee investigation.
  • Indictment timeline: Prosecutors filed just before the statute of limitations expired, reminiscent of tactics in Trump’s New York case.

• Is the Prosecution Politically Motivated?

  • David: “Everything about this was reeking of politicized prosecution.” [05:35]
  • Outlines irregular firing of US Attorney, direct Trump involvement via Truth Social, and confusion/irregularities in indictment signatures/process.
  • Both hosts agree the politics are glaring: “All of it … was highly irregular, seemed to be completely in response to direct commands from Donald Trump.” [06:40]

• Analysis of Evidence

  • Discusses two theories — the “McCabe Testimony” and the “Richmond Leak” — but finds both unconvincing given previous DOJ investigations yielded nothing.
  • “It appears to be a dry hole … it’s really leaving a lot of people saying, okay, where’s the there, there? And the indictment really gives us nothing.” [09:50]

• Selective Prosecution and Comparison to Trump Cases

  • Sarah: “Comey has as much of a slam dunk case as I’ve ever seen before” regarding selective prosecution— a nearly unwinnable defense, but compelling here due to obvious targeting. [11:21]
  • Draws a direct parallel to Trump’s New York prosecution, arguing both are fudgeable legally and clearly motivated by animus toward the person, not merely the crime: “If you were speeding and they pulled you over, that’s fine. Where selective prosecution ever wins … it generally would come with, like, targeting plus disproportionality.” [11:21]
  • “[With] Trump’s New York prosecution … They thought that by indicting Donald Trump that they would … take his piece off the chessboard. It was stupid of them, I will grant you, but, like, that was the purpose of it. And that's pretty nefarious in a … different way.” [15:35]

Notable Quotes

• David: “Everything about this was reeking of politicized prosecution.” [05:35]
• Sarah: “If they had brought the charge in 2017 ... any selective prosecution claim would have failed on its face.” [12:00]
• Sarah: “The idea that a judge might toss out the charges on that selective prosecution theory, I don’t know that that’s helpful for the larger project.” [29:16]

2. Historical and Normative Debate: Presidential Targeting & DOJ Independence

[18:43–26:01]

• Can a President Target Prosecutions?

  • Sarah reads and critiques an emailed defense of presidentially-directed prosecutions, arguing historical precedents (Washington, Adams, Jefferson, Roosevelt, Reagan, Bush, Obama) are largely about categories of crimes, not targeting individuals by name.
  • David interjects irony regarding Adams’ Alien and Sedition Act prosecutions: “Yeah, that was a really proud moment. Yeah, we want to imitate that.” [20:10]

• Watergate’s Impact and Limits of Legal Norms

  • Sarah and David agree post-Watergate reforms created hurdles to “imperial executive” behavior, but can’t fully prevent abuses by determined presidents.
  • David: “They put up more hurdles between an imperial executive and an abusive power. … There’s going to be this thicket of laws that he has to fight through with his abuse of power machete.” [24:09]
  • Both see structural limits to what law can do versus what culture and political accountability can achieve.

Notable Quotes

• Sarah: “[Post-Watergate laws] made people feel like they were reigning in the executive even though they weren’t.” [22:27]
• David: “If they’re going to do that, it’s going to be a lot harder. … There’s going to be this thicket of laws that he has to fight through with his abuse of power machete.” [24:09]

3. Historical Analogies: Wilson, FDR, the Imperial Presidency

[26:01–28:34]

• Comparative Presidential Abuse
  • Trump is compared to Woodrow Wilson (use of the DOJ against critics; anti-speech/“dissidents in jail”) and FDR (expansion of executive power).
  • David: “With Nixon you tried to have … legislative answers to let’s not do that again. But Sarah, let me go dark here. I don’t know, I don’t know that there’s going to be an appetite after this Trump term for let’s not do that again. So much as there will be an appetite of let’s do that to our enemies this time.” [28:20]

4. Theoretical Outcomes for Comey and Institutional Trust

[28:34–30:53]

• Possible Trial Outcomes
  • Full acquittal or hung jury could be as useful to the prosecutors as a conviction, tarnishing Comey regardless. [28:34]
  • David is pessimistic about institutional trust: “If the jury rules for them, vindication. If the jury goes against them, the fix is in.” [29:35]
  • The effect of the outcome will depend more on tribal loyalty than legal rationale.

5. SCOTUS Segment: Notable Dissents and the Interim Docket

[31:17–36:17]

• Favorite Supreme Court Dissents (w/ Guest Anastasia Bowden)
  • Discussion about great Supreme Court dissents, with guest Anastasia Bowden highlighting Justice Thomas’s dissent in Grutter v. Bollinger (affirmative action).
  • Sarah discusses her own favorite—Justice Jackson’s “Gobitis” opinion and Thomas’s dissent on cross burning in Virginia v. Black.
  • Emphasis on the lasting influence and resonance of dissenting opinions as both legal arguments and personal statements from the Justices.

Memorable Excerpts

• Anastasia Bowden: “Justice Thomas starts with a quote from Frederick Douglass … Racism is racism, no matter how you dress it up.” [33:40]
• Sarah: “You feel his [Thomas’s] experience … growing up in the segregated South.” [35:11]

6. Supreme Court Emergency (Interim) Docket — Department of State v. AIDS Vaccine Advocacy Coalition

[37:45–44:00]

• Case Overview

  • The case concerns the executive branch’s impoundment of $10.5 billion in aid funds, and whether advocacy groups could sue to enforce congressional appropriations.
  • The Supreme Court, 6-3, denied injunctive relief (Kagan dissenting), emphasizing procedural limitations rather than the merits of the executive’s actions.

• Discussion of Judicial Trends

  • David: “The Supreme Court, this current Supreme Court, is taking very seriously … that restraining of the executive does harm to the executive” [38:10].
  • Both hosts note that this is part of a string of 6-3 splits on the interim docket, often aligning with broader philosophical differences over the executive’s power and the legacy of Watergate reforms.

• Unitary Executive Debate

  • David mentions receiving thoughtful critiques from law professors challenging whether the current court’s unitary executive theory fits originalist interpretations.
  • Expresses openness to deeper debates: “I’d be very interested in having someone make that case from an originalist perspective.” [43:38]

Notable Quotes

• David: “We’re going to only check the executive on the back end after full examination of the merits of the case. So is that what’s happening here?” [40:54]
• Sarah: “The 6, 3 breakdown on the interim docket is getting pretty depressing.” [41:43]

Timestamps to Key Segments

| Segment | Start | |----------------------------------------------------------|------------| | Introduction & Comey Indictment | 01:25 | | Grand Jury/Counts Explained | 01:25–05:35| | Politicization of Prosecution | 05:35–10:53| | Selective Prosecution & Trump NY comparisons | 11:05–15:33| | Discussion on Presidential Targeting of Prosecutions | 18:43–24:09| | Watergate & Executive Power | 24:09–28:34| | Outcome Scenarios for Comey Case | 28:34–30:53| | Great Supreme Court Dissents (w/ Bowden) | 31:17–36:17| | SCOTUS Interim Docket and Case Analysis | 37:45–44:00| | Unitary Executive & Originalism Debates | 42:57–44:00|

Memorable Moments & Quotes

• On politicized prosecution:
  “Everything about this was reeking of politicized prosecution.” — David [05:35]

• On bad historical precedent:
  “John Adams absolutely directed the prosecution of individual political enemies ... That's an example of a bad thing. So don't love that.” — Sarah [21:13]

• On selective prosecution: “If you were speeding and they pulled you over, that’s fine. Where selective prosecution ever wins ... it generally would come with, like, targeting plus disproportionality.” — Sarah [11:21]

• On structural reform limits:
  “You can’t really legislate against abuses of power. You’ve got to vote in people who aren’t going to abuse power.” — Sarah [23:42]

• On likely public reaction to the Comey trial:
  “If the jury rules for them, vindication. If the jury goes against them, the fix is in. ... I’m not quite sure ... how we get out of it.” — David [29:35]

• On SCOTUS’s view of executive power:
  “This current Supreme Court is taking very seriously ... that restraining of the executive does harm to the executive.” — David [38:10]

• On originalist critiques:
  “There is an originalism critique of this court’s approach to the unitary executive. ... I’d be very interested in having someone make that case.” — David [43:38]

Tone & Style Notes

• The discussion is forthright and skeptical, with both hosts displaying deep subject matter knowledge, historical perspective, and willingness to scrutinize both sides of the political aisle.
• The language is candid and sometimes mordant, but always precise; legal explanations are clear and accessible, but never dumbed-down.
• Extended analogies and references to Supreme Court history—not just headline-making news—make this an especially rich episode for court-watchers and political-legal nerds.

Summary

This episode of Advisory Opinions offers a probing look at the Comey indictment and the legal-political complexities of selective prosecution, tying it to wider debates about the legacy of Watergate, presidential power, modern tribalism, and the Supreme Court’s evolving approach to executive authority. The hosts draw on history, theory, and recent SCOTUS developments to question where checks on power truly reside—and whether legal reforms or institutional culture offer stronger safeguards. Rich case law discussion rounds out the episode, making it essential listening for anyone interested in American law, government, or the 2024-25 legal-political climate.