Comment: Why the FBI is preparing a ‘perp walk’ for Comey

By Barbara McQuade / Bloomberg Opinion

The made-for-TV Trump administration appears to be gearing up to air its latest episode.

CBS News reports that the FBI is planning to subject James Comey to a “perp walk,” parading him before cameras in an exercise meant to publicly humiliate him. Not only would a staged arrest violate Justice Department policy, but it would also further undermine the legitimacy of what was once considered the world’s greatest law enforcement agency.

According to the report, the FBI is considering making a “showy” arrest of its former director, who was indicted Sept. 25 for allegedly lying to Congress in 2020, and is scheduled to appear in court on Thursday. CBS also reported that a source revealed that FBI leadership had requested “large, beefy” agents to arrest Comey “in full kit,” complete with Kevlar vests and other garments bearing the letters “FBI.” The source further reported that a supervisor in the Violent Crimes Division of the Washington Field Office refused to assemble agents for the stunt and was suspended for insubordination.

I know from my experience as a federal prosecutor that arrests are often necessary in criminal cases. When a defendant is a flight risk or poses a danger to the community, an arrest is essential. No one would allow an operational terrorist or a subject with substantial ties overseas to self-report. In addition, an arrest is sometimes required when an investigation has been covert and agents want to avoid the risk that the subject will destroy evidence before a search warrant can be executed. An arrest might also be appropriate when agents want to question a defendant who might be inclined to waive their Miranda rights against self-incrimination. Of course, none of those circumstances apply in this case, where Comey has already been indicted. In most white-collar crime cases, defendants are allowed to self-surrender to reserve FBI personnel for other matters. Moreover, the FBI seeks to protect agents and members of the public from the dangers that can arise when a defendant or onlooker panics during a surprise arrest.

For these reasons, Donald Trump was allowed to self-report when he was charged in federal cases involving the unlawful retention of sensitive government documents and conspiring to defraud the U.S. by interfering with the 2020 presidential election. Those decisions were consistent with sound law enforcement practices.

Even if an arrest could be justified in this case, a perp walk is something else entirely. The DOJ’s Justice Manual provides that personnel “should not encourage or assist news media in photographing or televising a person held in custody.” The policy is designed to avoid prejudicing a defendant’s right to a fair trial. In fact, the Second Circuit Court of Appeals has held that a “perp walk” staged for the benefit of the press, which serves no legitimate law enforcement purpose, exacerbates the seizure of the arrestee unreasonably, in violation of the Fourth Amendment’s protection against unreasonable seizures.

Of course, DOJ leaders may not care about the ultimate result in this case, which appears weak and politically motivated by all indications. Erik Siebert, Trump’s interim U.S. Attorney for the Eastern District of Virginia, reportedly resigned for refusing to bring the case. His replacement, Lindsey Halligan, a former insurance lawyer and White House staffer, presented the case and signed the indictment herself four days after taking the job. Ordinarily, cases are presented to the grand jury by an assistant U.S. attorney who is immersed in the facts of the case. In addition, reports also indicate that only 14 of the 23 grand jurors found probable cause to advance two charges to trial, while they rejected a third count altogether. At trial, of course, the government will need to convince 12 out of 12 jurors of guilt; and do so under the much higher standard of proof beyond a reasonable doubt. And so, if conviction at trial is unlikely, at least Trump will get to see Comey humiliated and his reputation smeared by subjecting him to criminal charges. And if the case is already doomed to fail, what additional harm can come from the spectacle and vindictive pleasure of a perp walk?

The harm, of course, is to the credibility of a once-esteemed agency. The FBI has made mistakes over the years, to be sure. But, in the post-Watergate era, the agency has adhered to policies and professional practices that have made it the envy of law enforcement agencies worldwide. Subjecting Comey to a perp walk would further erode public confidence in the FBI; now led by Kash Patel, a Trump loyalist whose claim to fame before now was authoring a children’s book casting himself as a wizard who saves “King Trump.”

Law enforcement is serious business. Using it to publicly humiliate political enemies may provide an entertaining form of reality TV for Trump and his supporters, but a Comey perp walk would cause lasting damage to the FBI. An agency entrusted with the responsibility to serve the public must resist the president’s lust for revenge.

Barbara McQuade is a professor at the University of Michigan Law school, a former U.S. attorney and author of “Attack from Within: How Disinformation Is Sabotaging America.”