The Maurene Comey Case and the Differences Between Prosecutors in the USA and Brazil

Last week, federal prosecutor Maurene Comey, daughter of former FBI Director James Comey, was summarily dismissed by the Trump administration without substantial justification. Comey had worked on high-profile cases, including prosecutions against Jeffrey Epstein and businessman Sean Combs, and had been part of the respected United States Attorney's Office for the Southern District of New York for nearly a decade.

The justification for her dismissal? A simple memo from the Department of Justice, generically supported by Article II of the U.S. Constitution, which grants broad powers to the president to appoint and remove members of the Executive Branch. No administrative process, no due process, no guarantee of tenure. A political and silent dismissal that exposes the fragility of a system that should be shielded against political interference.

In response, Maurene Comey sent a scathing email to her colleagues, warning: "If a career prosecutor can be fired for no reason, fear can contaminate the decisions of those who remain. Fear is a tyrant's tool, used to suppress independent thinking." Her words echo a fundamental concern about democratic functioning: how to ensure that criminal prosecution is conducted based on law, not political convenience?

This episode dramatically highlights a fundamental difference between the justice systems of the United States and Brazil: the absence of real institutional guarantees for the career of American federal prosecutors. While in the U.S. prosecutors can be dismissed "at will," the Brazilian model has developed a robust system of protections that, while not perfect, offers valuable lessons on how to preserve prosecutorial independence.

In Brazil, this would be (almost) impossible

Brazil's 1988 Federal Constitution structured the Brazilian Public Prosecutor's Office as a "permanent institution, essential to the jurisdictional function of the State" (art. 127), endowing it with functional independence and administrative autonomy. This institutional architecture was not accidental – it represented a historical response to authoritarian abuses during the military period, when criminal prosecution was frequently instrumentalized for political purposes.

The Brazilian system ensures three fundamental guarantees for Public Prosecutor members that shield them against political pressure: tenure after two years of service, which guarantees job stability; immovability, allowing compulsory removal only for reasons of public interest through collegial decision; and salary irreducibility, offering economic protection against financial pressure.

Furthermore, entry occurs exclusively through public competitive examinations, ensuring meritocracy and reducing political-partisan influences. Members are not subordinated to hierarchical orders of a political or governmental nature, preserving their functional independence to investigate and prosecute crimes regardless of those involved's position.

The Attorney General, for example, is appointed by the President of the Republic, but their removal requires authorization from an absolute majority of the Federal Senate (art. 128, §2º, CF), ensuring balance between powers and protection against potential abuses. This structure creates a system of checks and balances that makes political instrumentalization of criminal prosecution difficult.

In the U.S., federal prosecutors live under constant threat

The American system works in a profoundly different way. U.S. Attorneys are appointed directly by the president, with Senate approval, establishing a political connection from the start. Although there are thousands of Assistant U.S. Attorneys who work at the career level, their permanence is also subject to political convenience.

In practice, there are no minimum institutional guarantees like tenure or immovability for prosecutors. The Department of Justice, linked to the Executive, has strong hierarchical and disciplinary control over its members. This means that decisions contrary to the sitting government's interests can, as in Comey's case, cost one's job. A dangerous scenario for prosecutorial impartiality and separation of powers.

This vulnerability creates an environment of potential self-censorship, where prosecutors may hesitate to pursue politically sensitive cases for fear of retaliation. The message is clear: investigate and prosecute whoever you want, but know that your career may be at stake if you go against government interests.

Why this matters for democracy

Prosecutorial independence is fundamental for maintaining the Rule of Law for several essential reasons. First, it enables effective control of power, ensuring that independent prosecutors can investigate and prosecute government authorities without fear of retaliation. Second, it ensures equality before the law, guaranteeing equitable treatment regardless of the social or political position of those investigated. Third, it serves as a barrier against authoritarian drift, as systems with independent prosecutors are more resistant to attempts to capture the justice apparatus.

Politicization of criminal prosecution represents a direct threat to democracy, potentially resulting in selective persecution of political opponents, impunity for government allies, erosion of public confidence in the justice system, and weakening of the rule of law. When prosecutors act under threat of dismissal, the very notion of impartial justice is compromised.

Ensuring that prosecutors can act without fear of political retaliation is essential for preserving the Rule of Law. Criminal proceedings cannot be an instrument of revenge nor be conducted under threat of dismissal. Functional independence of the Public Prosecutor's Office is a safeguard against authoritarianism, whether explicit or disguised.

Lessons for the world

The Maurene Comey case should not be seen merely as an isolated incident, but as a symptom of systemic fragility that demands attention. The Brazilian model, forged by experience with authoritarianism, offers valuable insights on how to structure effective institutional guarantees. At the same time, the American experience demonstrates the practical consequences of the absence of such protections.

In this sense, the Brazilian model, despite its flaws and challenges, represents an institutional advance that could serve as inspiration for reflections on the American system. A mature democracy requires prosecutors free to investigate and denounce the powerful, including those who occupy the top of the Executive.

The international trend points toward strengthening institutional guarantees as an essential element of democratic Rule of Law. Countries like France, Germany, and Italy have developed their own models, with different degrees of autonomy and control mechanisms, but all recognizing the central importance of prosecutorial independence.

In a world where authoritarian pressures resurge even in established democracies, prosecutorial independence emerges as an essential bulwark against institutional degradation. American democracy, the birthplace of many institutional innovations, now has the opportunity to reflect on its own structures for protecting the Rule of Law.

The comparison between Brazilian and American systems reveals that protecting prosecutorial independence is not a democratic luxury, but a fundamental necessity for preserving the Rule of Law. The Brazilian model, forged by historical experience with authoritarianism, offers valuable lessons about how to structure effective institutional guarantees.

Until this happens, cases like Maurene Comey's should serve as a global warning about the risks of politicizing Justice. Fear cannot be the tool that governs the decisions of those charged with enforcing the law. Democracy depends on it.