The Federal Prosecutor’s Decision Not to Charge

The decision not to charge someone is a critical part of a prosecutor’s job, but it often goes unseen. I learned this first-hand during my 18 years as a DOJ prosecutor – prosecuting tax fraud across the country, violent crimes in Washington, D.C., then January 6 cases with the Capitol Siege Section, and later public corruption cases with the Public Integrity Section (before this administration dismantled it).

Criminal charges, after all, come with a host of consequences, whether or not the person charged is ever convicted. Police may take the person into custody, depriving them of their liberty, even if only for a few hours. They may be compelled to appear in court and sit through a trial, both of which are further deprivations of liberty. That person will need a defense attorney, the cost of which can be astronomical. And the mere fact of criminal charges, and an arrest record, can cause real harm to a person’s reputation and employability, even if that person is never convicted.

Every federal prosecutor I worked with took the decision to charge—or, not to charge—extremely seriously. And when an investigation convinced me that no crime had been committed, or the wrong person had been accused, I was proud not to bring charges, or to dismiss charges that were unwarranted.

Doing this was my legal, ethical, and moral obligation; it was, in my view, the sort of exercise that made the Department’s use of power legitimate.

Justice Department prosecutors have a guide called the Principles of Federal Prosecution, which helps them determine when a case should or should not be brought. One of those principles is the following:

[A]s a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.

The care behind a decision to charge—or, not to charge—illustrates why the prosecutions against former FBI Director James Comey and current New York Attorney General Letitia James are such tragedies. It is questionable whether or not they committed any crime, and of course, even if they did, that wasn’t the point of bringing these cases. Based on what President Trump told us himself, it seems clear that each case was brought to punish one of Trump’s enemies, which is never a legitimate use of the Department’s power.

(The recent charges filed against John Bolton might also fall into this category, but there is less in the public record about the strength of the evidence. For this reason, I will decline to include it in the same category as the Comey and James prosecutions until I learn more.)

Trump forced out Eric Siebert, the U.S. Attorney he had nominated, after Seibert investigated James, but was unable to build a case against her for mortgage fraud. In other words, Siebert was removed for doing what any prosecutor should do: evaluating whether there is a crime, and finding none, declining to bring charges. News outlets reported that prosecutors submitted a declination memo to the newly installed U.S. Attorney, Lindsey Halligan, explaining that they did not have the evidence to charge Comey. Days later, she submitted the case to a grand jury anyway.

These prosecutions are being excused because of the so-called weaponization of the Justice Department by Special Counsel Jack Smith and his “targeting President Trump” through the two cases he brought.

But Jack Smith himself has said he was willing to walk away from both of those cases. In his report to the Attorney General, he said (with emphasis added):

When I assumed responsibility for the matters you assigned to me, I came to the work with no preconceived notion of what the just outcome of the investigations would be. I was not yet familiar with all of the relevant facts and had not yet researched the relevant law. Depending upon what the investigations revealed, I was equally comfortable closing the investigations or moving forward with prosecutions in one or both of the matters, having done both in high profile matters throughout my career.

To make prosecutorial determinations, my Office gathered relevant evidence and examined whether that evidence established violations of federal criminal law. In doing so I was guided by the Principles of Federal Prosecution, a series of considerations designed to promote the fair and evenhanded application of the law. As set forth in my Report, after conducting thorough investigations, I found that, with respect to both Mr. Trump’s unprecedented efforts to unlawfully retain power after losing the 2020 election and his unlawful retention of classified documents after leaving office, the Principles compelled prosecution.

That word - compelled - is critical. Justice Department prosecutors don’t bring a case unless the evidence is so strong that they could make no other decision. Jack Smith later explained:

I want it to be clear that the ultimate decision to bring charges against Mr. Trump was mine. It is a decision I stand behind fully. To have done otherwise on the facts developed during our work would have been to shirk my duties as a prosecutor and a public servant. After nearly 30 years of public service, that is a choice I could not abide.

Jack Smith was willing to walk away if the evidence didn’t support a charge. This commitment to following the evidence makes sense: Jack Smith was no political operative, but had been a career prosecutor for almost 30 years before being named Special Counsel. As head of the Public Integrity Section, he prosecuted high-ranking Republicans, such as Virginia governor Bob McDonnell, and Democrats, such as presidential candidate John Edwards. He also worked at the Manhattan District Attorney’s Office, the U.S. Attorney’s Offices for New York and Tennessee, and was tapped to lead efforts at The Hague to prosecute war crimes in the Kosovo War. He was appointed as Special Counsel because of his unimpeachable credentials and integrity, not because of political allegiance. But, of course, the professionalism that informs Jack Smith’s perspective is not shared by Trump, and declining to bring charges because of a lack of evidence is the opposite of Trump’s modus operandi.

Trump understands the spectacle of a publicly announced investigation. Remember, after the presidential election in 2020, he told his Acting Attorney General to “[j]ust say the election was corrupt and leave the rest to me and the Republican Congressmen.” (The Acting Attorney General refused to do this.) Trump understood that, even if the investigation led nowhere, the spectacle of it would help his efforts to overturn the results of the election.

So too, here: on September 20, Trump wrote a public tweet to his attorney general, claiming that Comey, James, and others were “all guilty as hell, but nothing is going to be done.” He claimed that the delay in charging Comey, James, and others was “killing our reputation and credibility.” Then, after the Comey indictment was returned, Trump claimed that the indictment was “JUSTICE IN AMERICA!” The next day, he called Comey a “Dirty Cop” and claimed that Comey’s supposedly false testimony was “a very serious and far reaching lie for which a very big price must be paid!” After James was indicted, Trump posted a series of news clips with chyrons such as “Tish James Earned This” and “James Indictment Is Ultimate Irony.”

These comments reveal that, just like in 2020, the spectacle is the point: the indictment gives Trump cover to smear their reputations, whether or not Comey or James are ever convicted. And, Trump gets to force the targets of his ire to deal with the court system, to sit through a trial, and to bear the cost (in time and money) of defending themselves, just as Trump was forced to do during the time between his presidencies.

Trump wants revenge. And the spectacle, itself, allows him to have it.

And he has made that clear as he continues to add names to his list of targets. From the White House, and surrounded by the Attorney General, the Deputy Attorney General, and the FBI Director, Trump on Wednesday called for investigations into Jack Smith, Andrew Weissmann, and Lisa Monaco.

Trump’s DOJ is using the machinery of criminal prosecution to harm and punish a political foe, whether or not he is guilty.

There is no room for a prosecutor to exercise good judgment, no room for a prosecutor to consider the serious way that criminal charges can—by themselves—harm someone.

This is corruption, it is an abuse of power, and it should alarm every American.

Mike Romano was a federal prosecutor for almost 18 years. He was a Deputy Chief of the Capitol Siege Section, which investigated and prosecuted cases arising out of the riot at the U.S. Capitol on January 6, 2021. Mike left the government in March 2025, shortly after the rioters were pardoned, and now works at a law firm dedicated to fighting for workers’ rights.