Attorneys for former FBI Director James Comey filed a slate of motions Monday seeking to have the two-count federal indictment against him dismissed before a potential trial date early next year, arguing he was charged because of “President Trump’s personal animus.”
Comey’s attorney, Patrick Fitzgerald, moved to dismiss the case on the grounds that it is based on a vindictive and unlawful prosecution. He is also challenging the appointment of interim U.S. Attorney Lindsey Halligan to that role.
Comey’s attorneys wrote that the charges arose due to an “egregious abuse of power,” and there are “multiple glaring constitutional violations” in the indictment. They argued that Mr. Trump ordered prosecutors to charge Comey due to “personal spite” and because Comey had “frequently criticized the President,” who fired Comey from his role leading the FBI in 2017 and has sparred with Comey for years.
The requests were expected, as Fitzgerald previewed them when he appeared alongside Comey during his arraignment earlier this month. He is expected to file a second tranche of filings to toss out the charges in the coming weeks.
U.S. District Judge Michael Nachmanoff has set a hearing on the first set of motions for Nov. 19 in Alexandria, Virginia.
Comey’s attorneys said that even if the case is not dismissed for vindictive prosecution, “concrete and objective facts justify thorough discovery into the suspect prosecutorial decision-making process that led to this flawed indictment and a hearing at which the government must justify its decision to bring these unfounded and retaliatory charges.”
His legal team says that “absent a dismissal with prejudice, Mr. Comey would face a potential perpetual state of being vindictively prosecuted.”
In a separate motion, attorneys for Comey also argued that Halligan, the only attorney in the U.S. Attorney’s Office for the Eastern District of Virginia to sign his indictment, “was defectively appointed to her office as an interim U.S. Attorney.”
Arguing that “no properly appointed” official from the executive branch had obtained the indictment against Comey, his lawyers said “the indictment is equally a nullity” and should be dismissed.
“The President and Attorney General appointed the President’s personal lawyer as interim U.S. Attorney in violation of a clear statutory command so that the interim U.S. Attorney could indict an outspoken critic of the President just days before the relevant statute of limitations was set to expire,” Comey’s lawyers wrote.
A Justice Department spokesperson had no comment on the pair of motions.
Prosecutors raise doubts about Comey’s attorney
Federal prosecutors also indicated Sunday that they may seek to have Fitzgerald disqualified because of his alleged involvement in a so-called plan by Comey to leak the contents of a memo to the media shortly after Mr. Trump fired him as FBI director in 2017, during the president’s first term.
“[B]ased on publicly disclosed information, the defendant used current lead defense counsel to improperly disclose classified information,” prosecutors Tyler Lemons and Gabriel Diaz, wrote in a filing. “This fact raises a question of conflict and disqualification for current lead defense counsel.”
A Department of Justice Inspector General report found that Comey shared four memos with Fitzgerald in May 2017, who then forwarded them to two other lawyers working for Comey. Prosecutors are asking Nachmanoff to put in place a “filter team” to sift through evidence that may contain information shielded by attorney-client privilege and therefore cannot be disclosed.
Prosecutors’ use of material protected by privilege can raise obstacles in the case, ranging from disqualification of that material to mistrial or dismissal of charges. Filter teams are typically groups of government attorneys who review documents and separate privileged information from non-privileged information before the material gets to prosecutors on a given case.
Prosecutors said the evidence at issue in Comey’s case includes communications between him and several lawyers, one of whom appears to be Fitzgerald. They wrote in their latest filing that the material subject to review by the filter team “could also inform a potential conflict and disqualification issue for” Fitzgerald.
But Comey’s lawyers accused prosecutors of attempting to “defame” Fitzgerald and noted that the Justice Department’s internal watchdog “found no evidence that Comey or his attorneys released any of the classified information contained in any of the Memos to members of the media.” The Justice Department in 2019 declined to prosecute Comey for his handling of the memos.
Halligan is the latest DOJ prosecutor to face court challenges
Comey was charged in September with one count of making false statements to Congress and one count of obstruction of justice, related to Senate testimony he gave five years ago. Comey pleaded not guilty to both counts at his arraignment.
Because Comey is challenging Halligan’s appointment to temporarily lead the U.S. Attorney’s Office for the Eastern District of Virginia, Nachsmanoff, who sits on the bench in the district, will have to recuse himself, and a judge from outside of the district will hear arguments on that motion.
The challenge to Halligan’s appointment comes after defendants in New Jersey and Nevada successfully challenged similar U.S. attorney appointments President Trump made in those two states in recent weeks, as the administration has attempted to bypass the Senate confirmation process for these positions around the country.
A federal judge in August found that Mr. Trump’s former personal lawyer, Alina Habba, is serving “without lawful authority” as the U.S. attorney in New Jersey. Weeks later, a federal judge ruled that Sigal Chattah, the top federal prosecutor in Nevada, was also serving illegally in her role.
Halligan, one of Mr. Trump’s former defense lawyers who later joined him in his second administration, was tapped as interim U.S. attorney in September after serving as a senior aide to Mr. Trump in the White House. Her appointment came days after Erik Siebert, who had been the top federal prosecutor in Eastern Virginia, resigned amid concerns he would be forced out for not prosecuting another of Mr. Trump’s foe, New York Attorney General Letitia James, for alleged mortgage fraud.
James was indicted in the Eastern District of Virginia earlier this month on one count of bank fraud and one count of making false statements to a financial institution. She has called the charges “baseless.”
Attorney General Pam Bondi has invoked a provision of federal law that addresses U.S. attorney vacancies to install people in these posts temporarily. The law allows an appointee to serve 120 days as interim U.S. attorney and gives district court judges in the area the authority to keep them in the role or tap a new U.S. attorney to serve until the vacancy is filled.
In the case of the Eastern District of Virginia, Siebert was installed as the interim U.S. attorney in January, and the judges there had extended his appointment as U.S. attorney for the region in May.
But in the challenge to Habba’s appointment to lead the New Jersey U.S. Attorney’s Office earlier this year, U.S. District Judge Matthew Brann found that the attorney general is given 120 total days to appoint an interim U.S. attorney. The judge agreed that the law allows different individuals to be appointed interim U.S. attorney, “but for an aggregate term of 120 days.”
Allowing the 120-day clock to reset with the selection of each new temporary U.S. attorney would allow the president “to staff the United States Attorney’s office with individuals of his personal choice for an entire term without seeking the Senate’s advice and consent,” Brann wrote.
While that conclusion does not bind the judge who will consider the validity of Halligan’s appointment in Virginia, Fitzpatrick’s motion points to Habba’s case as part of the government’s attempt to “end run” Congress’ authority on judicial nominations and appointments, adding: “This Court should reject the government’s machinations here.”
Comey charged after sparring with Trump for years
Comey has long been a political opponent of Mr. Trump’s, and the president has for years taken to social media to attack the former FBI director. Mr. Trump has lambasted Comey for his handling of the FBI’s investigation into Russian meddling in the 2016 election and alleged ties between Russia and Mr. Trump’s associates. Mr. Trump fired Comey in May 2017, and Robert Mueller, who was named special counsel just over a week after Comey’s ouster, then took over the probe.
The indictment of the former FBI chief came days after Mr. Trump took to social media to voice frustration with Bondi for not bringing criminal charges against Comey and two other political opponents: James and California Sen. Adam Schiff, both Democrats.
In his message to Bondi, Mr. Trump called the trio “guilty as hell” and wrote, “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!!!”
While claims of selective or vindictive prosecution are difficult to prevail on, former prosecutors have said the circumstances surrounding Comey’s indictment could be a boon to his lawyers in having the charges tossed out.
Selective prosecution is when the prosecutor appears motivated by discriminatory intent, and vindictive prosecution is when the government acts out of “genuine” animus or seeks to punish a defendant for exercising a legal right.
Fitzgerald said at Comey’s arraignment that there will be another slate of motions filed by Nov. 20 also challenging the case against him, including claims of grand jury abuse and “outrageous conduct” by the Justice Department.
Grounds for a motion alleging abuse of the grand jury process can include possible improper legal instructions given by the prosecutor to the grand jury, an intentional withholding of information that would exonerate the defendant or indictments obtained as a means of retaliation.
