On July 15, the U.S. Senate will consider President Donald Trump’s nomination of Acting Attorney General Todd Blanche for the position permanently. Since taking over from Pam Bondi in April, Blanche has been busy. On April 14, he moved to vacate the convictions of Proud Boys and Oath Keepers leaders involved in the Jan. 6 attack on the U.S. Capitol. A week later he held a press conference announcing an 11-count indictment of the Southern Poverty Law Center. In May, he proposed a $1.8 billion fund to financially reward the president’s political allies.
By conventional measures, his record is not especially impressive. A district court recently pressed the Justice Department to explain why dismissing the convictions of men found guilty of crimes including seditious conspiracy would serve the public interest—an unusual obstacle to a typically perfunctory exercise of prosecutorial discretion. The $1.8 billion fund generated a bipartisan firestorm and was scrapped within weeks, while a federal court later ruled that it was the product of improper self-dealing. The SPLC indictment was so poorly constructed that prosecutors have already had to refile it.
The capstone of Blanche’s audition was an indictment announced this spring against former FBI Director James Comey—his second. The first case, brought by Bondi, charged Comey with lying to Congress and obstructing a congressional proceeding. The latest involves a photograph Comey posted of seashells arranged into the numbers “86 47” on a beach. “86” is restaurant slang for removing something from the menu. The Department alleges the picture was a threat to kill the 47th president.
So far, the more revealing response to the Comey indictment has come from the right. “If the seashell thing is the best the DOJ has on Comey, we’re in trouble,” said radio host Glenn Beck. Andy McCarthy, a conservative former federal prosecutor, called the new charges “even more absurd than the previous.” “It doesn’t matter if you despise Comey,” wrote Billy Binion, a reporter at the right-leaning publication Reason. “The indictment is an embarrassment.” Jonathan Turley, a regular Trump defender, wrote for Fox News that he would “prefer to crawl into one of Comey’s conversational shells” than defend the prosecution. “However, here we are.”
The case does not seem designed to succeed. But Blanche’s nomination suggests that was never quite the point. What looks like prosecutorial incompetence is better understood as prosecutorial sycophancy: where the president’s subordinates compete to demonstrate loyalty in hopes of being personally rewarded. Charges are brought primarily to please. The audience is not the court, or even, for that matter, the political opposition. It’s the leader.
Pleasing the Leader
Sycophantic prosecutions are ancient. During the Roman Empire, informers brought charges against the Emperor’s perceived enemies and were rewarded with gifts and political positions. The practice had a name—delation—and its corruption marked a shift from republican law in the Roman legal system toward an imperial one. These leader-pleasers—delatores—levied accusations of disrespect or threats that were often farcical. But the payoff required prostration, not seriousness. Under Tiberius, whose reign became associated with the practice, delatores prosecuted capital crimes like carrying a coin bearing the Emperor’s image into a bathroom, or changing clothes near his statue.
The distinction is important, because delator logic operates differently from other political prosecutions. For one, subordinate loyalty-signaling tends to overreach, because the cost of under-pleasing is higher than the cost of looking ridiculous. Nobody gets fired for being too zealous; people get fired for insufficient zeal. In the 1670-80s, what began as a genuine inquiry into poisonings among the Parisian aristocracy gradually escalated as officials competed to uncover ever-more-lurid conspiracies in an effort to impress King Louis XIV. Investigators eventually produced “evidence” implicating the King’s own mistress in satanic rituals. (At that point the King shut the proceedings down and sealed the records for a century.)
Blanche has not been shy with his prostrations. According to reporting by The New York Times, Trump last year declared himself “the hunter.” Officials like Blanche “came to believe that Mr. Comey was the president’s most sought-after prey,” and then scrambled to help catch him. As the Times reported, the seashell indictment was produced under sustained pressure from Blanche’s office, overriding the objections of career prosecutors and FBI agents. One agent was reportedly fired for refusing to cuff Comey for the cameras. (When Blanche announced the charges, he described them as the product of work by career prosecutors and agents.) Nor was Blanche discreet about his hoped-for reward. If Trump “chooses to nominate me, that’s an honor,” he told reporters in April. And if not? That’s okay, too. “I will say, ‘Thank you very much. I love you, sir.’”
Delator logic is now increasingly visible in the Justice Department’s legal filings. In recent months, motions have read like Trump’s Truth Social posts, replete with rampant capitalization, erratic punctuation, abrupt digressions, personal grievances, familiar name-calling, and effusive praise for the president. In a recent brief seeking dismissal of a lawsuit challenging Trump’s White House ballroom project, Justice Department lawyers, including Blanche, accused the plaintiff of suffering from “TRUMP DERANGEMENT SYNDROME,” described the plaintiff as “very bad for our Country,” and extolled Trump’s unique abilities as a real-estate developer. In another recent brief to keep Trump’s name on The Kennedy Center building, a Department lawyer argued that “No one else other than President Trump” could raise the money necessary to repair the building, which is at risk of “total collapse!” That the plaintiff, an ex officio trustee, has been “a troublemaking appointment, from the beginning of her tenure!” And that the Center “will be the envy of the World, something that everyone, including this court, will be proud of.” If the primary objective were to persuade a court, this would be a strange strategy. But it is not.
Authoritarians routinely prosecute opponents—an obvious way to increase the costs of opposition. But doing so requires some calibration. Even when plainly political, these cases typically strive for some measure of plausibility. A prosecutor who brings at least colorable charges maintains the judiciary’s cooperation and retains the ability to bring future cases that can stick. At the very least, plausibility gives political allies some cover and a story for propagandizing to the public. In 2003, Russian President Vladimir Putin had Mikhail Khodorkovsky, then Russia’s richest man and a financier of opposition parties, arrested at gunpoint on a Siberian airstrip on charges of tax fraud and embezzlement. The case likely involved real financial improprieties even if the prosecution’s purpose was obvious. This administration has sometimes appeared to model that approach. Errors on mortgage applications are the type of technical legal violations that other authoritarian regimes use to go after opponents. It’s what’s made the charges against New York Attorney General Letitia James (bank fraud) particularly chilling. The allegations may have been baseless and the motivation clear, but to some, they could have nonetheless sounded credible.
The reindictment of Comey might bring to mind Turkey under Recep Tayyip Erdoğan, where serial reindictment is common. In 2018, when the European Court of Human Rights first ordered the release of Kurdish opposition politician Selahattin Demirtaş, Turkish prosecutors simply issued new charges covering the same underlying conduct.
But on closer inspection, Comey’s prosecution is a poor fit to the model. Demirtaş was an elected member of parliament, the charismatic co-chair of Turkey’s third-largest party, and a genuine rival to Erdoğan. The prosecution was sized to that threat, neutralizing him as a political actor. Comey, meanwhile, is a retired official. Demirtaş’ ordeal also sent a signal to other opposition figures about the cost of challenging Erdoğan; the prosecution was legible to his peers as a credible threat. The seashells case, meanwhile, has broadcast clownishness. It is more farce than menace, muddying any deterrent effect if any were intended. Laura Coates, CNN’s chief legal analyst, asked how prosecutors could “keep a straight face while writing” it.
Strategic prosecutions calculate how much institutional degradation the system can absorb without generating counterproductive backlash—and stay just below that threshold, working to preserve enough institutional legitimacy to remain useful for the regime. When the central goal is consolidating power by inhibiting the opposition, jeopardizing institutional credibility is unhelpful. This is in part what makes those prosecutions so dangerous—that they are in fact strategic. But zealous subordinates in the Trump administration do not appear to be reliably making that calculation. They’re optimizing for the leader’s approval in the moment.
Blanche has curried Trump’s favor, for now. But the sycophantic model is fundamentally unstable. An impetuous leader dispensing rewards breeds insecurity, not stability. Rivals angling for the same slot are always circling. Trump was reportedly in no hurry to name a new attorney general after firing Bondi, preferring instead to watch subordinates compete. The delator offering a tribute today understands that it may not be enough tomorrow, and that the next in line is preparing his audition.
The resultant loyalty bidding can look ridiculous. Senior officials like Vice President JD Vance and Secretary of State Marco Rubio have begun wearing identical Florsheim leather wingtips because Trump likes them, even if the shoes clearly don’t fit. (According to Vogue, the gap in Rubio’s shoes has at times appeared “cavernous.”) But comical slavishness still does damage. Comey must still hire lawyers, appear in court, and live under indictment. Cases brought to flatter can also implausibly succeed, especially if the judiciary has been sufficiently compromised, if the jury pool is favorable or has been misled about the facts and law, or if the target makes a mistake. And they leave the institutions they have humiliated warped and disfigured. Each cycle—each charge, dismissal, and recharge—perverts the principle that prosecution should be based on evidence and law.
There is some good news here for the opposition. While colorable charges offer an excuse to rationalize accommodation, the seashell case is almost impossible to present as anything other than what it is. The lack of ambiguity undermines an important authoritarian asset: the ability to preserve some measure of believability that institutions are still functioning normally. It makes it more difficult to sustain the this-is-normal narrative that autocrats depend upon to keep wavering elites and voters from defecting.
Judges, prosecutors, bar associations, and other legal institutions must respond to cases like this. A strategically calibrated prosecution offers those institutions some cover for acquiescence. Sycophants squander that advantage, forcing institutional actors to make a starker choice: either demonstrate independence and fidelity to the rule of law, or go along with the farce and reveal that the institution has been captured. The starkness is clarifying, eliminating shades of grey in which to hide.
Much of the legal system’s deference to prosecutors rests on assumptions that no longer hold. Courts have long presumed regularity because prosecutors are ordinarily understood to be pursuing the law in good faith. Judges hesitate to pierce grand jury secrecy because the charging process itself is presumed fundamentally legitimate. Bar authorities move cautiously to discipline attorneys because proving intentional political abuse is often difficult when pretext remains at least somewhat believable. Each of these actors has tools for addressing abuse; they have simply been reluctant to use them. But that may be changing. Judges are indeed proving more willing to review grand jury transcripts where there are strong indicia of prosecutorial misconduct. Comey’s first prosecution collapsed after a magistrate judge took the rare step of releasing grand jury transcripts to the defense, which revealed “a disturbing pattern of profound investigative missteps,” wrote the judge. The SPLC, among others, have cited the judge’s ruling to access grand jury materials.
Courts should go further, adopting procedural safeguards like the “no true bill” rule devised by the Chief Judge of D.C.’s district court, which would require prosecutors to disclose when a grand jury has previously declined to indict before re-presenting the matter elsewhere. State bars, meanwhile, should move promptly against prosecutors shown to have engaged in misconduct rather than treating such cases as ordinary disciplinary matters to be processed over years. Defendants targeted by retaliatory prosecutions should more aggressively pursue attorneys’ fees under the Hyde Amendment, which permits fee awards against the government for prosecutions undertaken in bad faith. These measures are more difficult when the political nature of a prosecution remains genuinely contestable. But that is often no longer the case.
There is another response available, as well. The reaction to the seashell indictment was revealing not because critics condemned it, but because so many observers—including some inclined to support the administration—openly mocked it. Although Comey will need to mount a serious defense, it may be helpful for the rest of us to laugh.
