Lawyers for former FBI Director James Comey will again confront the Justice Department in a federal courtroom Wednesday, as Comey seeks to have the two-count federal indictment against him dismissed on the grounds that it is based on a “vindictive and selective” prosecution.
The hearing is the second in two weeks stemming from Comey’s bids to dismiss the criminal charges, which stem from testimony he gave to the Senate Judiciary Committee more than five years ago. Comey has pleaded not guilty to both charges and has argued that the prosecution is a result of Mr. Trump’s efforts to target a political foe.
In court filings last month, Comey’s attorneys wrote that the charges were the result of an “egregious abuse of power,” and asserted there were “multiple glaring constitutional violations” in the indictment. They argued that Mr. Trump ordered prosecutors to charge Comey out of “personal spite” and because he “frequently criticized the President,” who fired Comey from his role leading the FBI in 2017 and has continued to attack him for years.
Comey’s legal team argued that “absent a dismissal with prejudice, Mr. Comey would face a potential perpetual state of being vindictively prosecuted.” If the case is dismissed with prejudice, prosecutors would not be able to re-file the charges.
Defendants must clear a high bar in order to win the dismissal of an indictment on the grounds that the prosecution is vindictive and selective.
For vindictive prosecution, the defendant must show that the prosecutor acted with “genuine animus” toward him, and that prosecutor pursued charges to punish the defendant for exercising a protected right.
In a claim of selective prosecution, the defendant must show that the government was motivated by a discriminatory purpose, either by demonstrating that similarly situated individuals were spared from prosecution or that the decision to bring charges was “invidious or in bad faith.”
Comey’s lawyers have argued in filings that direct evidence establishes that Mr. Trump harbors “genuine animus” toward Comey based on his protected speech and the president’s “arbitrary personal bias.” The former FBI chief has repeatedly spoken out against Mr. Trump’s conduct in office and in response, the president has “resorted to personal attacks and calls to retaliate against Mr. Comey through punishment and imprisonment,” defense lawyers wrote.
To demonstrate the breadth of Mr. Trump’s dislike of Comey, his lawyers provided the court with nearly 60 pages of social media posts from the president dating back to May 2017 in which he attacks and accuses the former FBI director of wrongdoing.
“As a private citizen, Mr. Comey has vigorously and prominently exercised his First Amendment right to criticize President Trump. In response, President Trump has repeatedly attacked and threatened Mr. Comey,” Comey’s lawyers wrote. “That pattern began soon after Mr. Comey’s May 2017 termination as FBI Director and has continued up until — and even after — the indictment in this case.”
Defense lawyers also highlighted the timing of Comey’s indictment — sought days before the five-year statute of limitations expired — and the fact that it was pursued only after the president installed his former personal defense lawyer and White House aide, Lindsey Halligan, as interim U.S. attorney for the Eastern District of Virginia.
Halligan is a former insurance lawyer who did not have any prosecutorial experience before being tapped to lead the Virginia prosecutors’ office. She replaced Erik Siebert in the role, whose abrupt departure came amid concerns he would be removed for failing to bring a case against New York Attorney General Letitia James, another critic of the president.
“With the statute-of-limitations deadline looming and no career prosecutor — not even President Trump’s own interim U.S. Attorney (Mr. Siebert) — willing to seek the indictment, the President took matters into his own hands by directing his Attorney General to seek ‘JUSTICE’ against Mr. Comey and to unlawfully appoint a White House aide who would prosecute this case. She then immediately did so,” they wrote.
Justice Department lawyers responded by arguing in court filings that Comey “weaves a tale” through “news reports, social media posts, and speculation” that does not meet the “rigorous legal standard” to dismiss the case.
They argued that numerous high-ranking government officials have been prosecuted for lying to Congress about official actions. The department also argued that Comey has not alleged that Halligan, who sought the indictment, harbored animus against Comey, and there is no evidence that Mr. Trump displaced her as the decision-maker in bringing the prosecution.
“The true affront to the criminal justice system would be to allow the defendant to escape accountability for lying to and obstructing Congress under oath about actions he took while serving as the Director of the Federal Bureau of Investigation,” prosecutors wrote. “The indictment was presented by a duly appointed and unbiased prosecutor. And a duly constituted grand jury found probable cause that he committed the indicted offenses.”
Justice Department lawyers also pointed to Mr. Trump’s years of social media posts about Comey, but said they show the president’s view that Comey committed a crime preceded the former FBI director’s public criticism of the president.
They said Comey was prosecuted because of his “extraordinary conduct” and “flagrant violation” of the public’s trust by allegedly lying to Congress.
“The Executive cannot be expected to ignore agency heads lying about official actions simply because they later become outspoken critics,” prosecutors wrote.
Comey’s motion claiming selective and vindictive prosecution is one of several pursued by his defense team that aim to have the charges dismissed before the start of a trial.
As proceedings have moved forward in the weeks since his indictment in late September, prosecutors have run into issues that could doom their case.
On Monday, a federal magistrate judge took what he called the “extraordinary remedy” of ordering federal prosecutors to turn over all grand jury materials to Comey’s defense team, citing a “disturbing pattern of profound investigative missteps” in the case, including potential issues with how the Justice Department handled evidence used in the grand jury presentation and how Halligan conducted herself in front of the grand jury.
The U.S. district judge handling the case, Michael Nachmanoff, has temporarily paused that order while the Justice Department appeals it.
Comey’s legal team also argued alongside New York Attorney General Letitia James’ legal team last week that the indictments against them should be dismissed because Halligan’s appointment was unlawful. James was indicted last month on federal mortgage fraud charges and has pleaded not guilty. The federal judge who heard arguments on that issue said she would have a ruling on the validity of Halligan’s appointment by Thanksgiving.
