Washington — The indictment of former FBI Director James Comey on Thursday marked the culmination of President Trump’s yearslong desire to see one of his political foes punished after the bureau’s investigation into his 2016 presidential campaign and Russian meddling in that election.
But the president’s long-held ire toward Comey, coupled with his latest comments cheering the federal charges brought against the former FBI chief, could aid defense lawyers in a potential bid to have the case against Comey tossed.
“In this case, the facts before the indictment and even comments Trump made after the indictment provide strong factual evidence that Mr. Comey is the victim of either selective or vindictive prosecution,” Gene Rossi, a former federal prosecutor who worked at the Justice Department for nearly 30 years, told CBS News.
A federal grand jury returned an indictment against Comey charging him with two counts: making false statements to Congress and obstructing a congressional proceeding. It declined to indict him on an additional count of lying to Congress, a rare rejection of a proposed charge.
The charges stem from Comey’s September 2020 testimony before the Senate Judiciary Committee, during which he denied authorizing anyone at the FBI to be an anonymous source in news reports.
Whether to seek an indictment had been met with pushback from career prosecutors in the U.S. Attorney’s Office for the Eastern District of Virginia, which is prosecuting the case. Staff in the office had circulated a “declination” memo explaining why criminal charges should not be filed against Comey, a Justice Department source told CBS News.
But days before Comey was charged, and after the abrupt departure of Erik Siebert as the top prosecutor in the Virginia office, Mr. Trump installed a White House aide and his former personal defense lawyer Lindsey Halligan as Siebert’s replacement.
Halligan has no prosecutorial experience. Only she signed Comey’s indictment, and Halligan remains the only attorney listed as representing the U.S.
Comey denied any wrongdoing, and said in a video shared to social media, “I’m innocent, so let’s have a trial and keep the faith.” His lawyer, Patrick Fitzgerald, said Comey will be vindicated in court.
Legal experts expect Fitzgerald will seek to have the case dismissed on numerous grounds, including selective prosecution, which is when the prosecutor appears motivated by discriminatory intent, and vindictive prosecution, when the government acts out of “genuine” animus or seeks to punish a defendant for exercising a legal right.
Carissa Byrne Hessick, a law professor at the University of North Carolina School of Law, said claims of selective or vindictive prosecution are difficult to prevail on, and it’s tough to predict whether Comey will succeed in convincing a judge to dismiss his charges on those grounds.
Courts are generally hostile to those claims — the legal standard is high for proving them and judges are concerned about opening the floodgates to these types of motions, Hessick said. But on the other hand, Comey’s case may look different than others given the events leading up to his indictment, namely the appointment of Halligan and reports of internal disagreement over seeking charges, she said.
“The mixture of those two things — the fact that these sorts of cases are very hard to win, but also the unusual circumstances and the availability of evidence — I think makes it too difficult to predict what a court will do here,” Hessick said.
Mr. Trump has for years railed against Comey publicly, claiming he should be prosecuted for “treason” and calling him “corrupt,” “stupid” and a “dirty cop,” among other insults. In a social media post Saturday, the president made a direct appeal to Attorney General Pam Bondi for action against Comey and two other political opponents: New York Attorney General Letitia James and Democratic Sen. Adam Schiff of California.
Mr. Trump wrote the three are “guilty as hell” and said, “We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”
The president then cheered Comey’s indictment Thursday night.
“One of the worst human beings this Country has ever been exposed to is James Comey, the former Corrupt Head of the FBI,” Mr. Trump wrote on Truth Social. “Today he was indicted by a Grand Jury on two felony counts for various illegal and unlawful acts. He has been so bad for our Country, for so long, and is now at the beginning of being held responsible for his crimes against our Nation. MAKE AMERICA GREAT AGAIN!”
The attacks on Comey continued Friday, with Mr. Trump calling him a “destroyer of lives” who must pay a “very big price” for lying.
“Whether you like Corrupt James Comey or not, and I can’t imagine too many people liking him, HE LIED!” Mr. Trump wrote. “It is not a complex lie, it’s a very simple, but IMPORTANT one. There is no way he can explain his way out of it. He is a Dirty Cop, and always has been.”
Rossi said the years of comments made by Mr. Trump from the spring of 2017 — when the president fired Comey during his first term — to now, could bolster Comey’s bid to have the charges dismissed.
“Whether vindictive or selective, this animus, the hatred, the prejudice toward who is charged, those emotions and factors become highly relevant,” he said.
But it’s not just comments from Mr. Trump that could come into play. Bondi and FBI Director Kash Patel also cheered the charges against Comey, with Patel claiming Comey and other top FBI officials weaponized federal law enforcement when they led the bureau.
“They are putting their thumb on the scale of justice instead of letting Lady Justice handle this matter blindly,” Rossi said. “That violates every norm — every norm — that a federal prosecutor is taught from the time they’re born as baby prosecutors.”
He said the grand jury’s rejection of the third count, lying to Congress, is “another brick in the wall” in support of Comey moving to dismiss the charges because of vindictive and selective prosecution, as is the opposition to pursuing an indictment by career prosecutors in the U.S. Attorney’s Office for the Eastern District of Virginia. Under Justice Department policy, prosecutors may pursue indictments only if they believe they can secure a conviction and that conviction will be sustained on appeal.
“That seasoned and career prosecutors, plus the former U.S. attorney for the EDVA, all said that this indictment doesn’t have a legal and factual basis to present to the grand jury, and that [Halligan] was appointed three days before this charge was approved by the grand jury is all ample evidence that something is rotten in Denmark,” Rossi said.
Comey’s case is unique compared to others where claims of selective or vindictive prosecution are raised for numerous reasons, Hessick said: It involves people who are newsworthy; there are media reports about the decision to bring charges; Mr. Trump has publicly spoken about action against Comey; and the charges against him appear to involve congressional testimony about investigations into Mr. Trump or Clinton.
“The case is also notable because this isn’t just a question of the motives of the specific prosecutor who brought the charges,” she said. “It’s also about the president’s decisions to speak publicly about a case that’s a high-profile political case.”
Hessick said that in previous administrations, presidents are often — but not always — careful not to comment about ongoing cases.
Mr. Trump sought to have criminal charges brought against him by former special counsel Jack Smith in each of the two cases dismissed for vindictive and selective prosecution, but one of the requests was denied. The two cases, one involving the 2020 election and the other involving Mr. Trump’s handling of sensitive government documents after his first term, were dismissed after he won a second term in the White House.
Hunter Biden, former President Joe Biden’s son, also unsuccessfully sought to have his indictment on tax charges dismissed on the same grounds, arguing the investigation into him was “compromised by politics.”
Hunter Biden pleaded guilty to the charges last year.
contributed to this report.
