“If there is any hope of Donald Trump ever being held accountable (which may not be possible), I would think the vindictive/selective prosecution might be the strongest possibility. James Comey’s team has raised several grounds for dismissal. If the court finds other grounds for dismissal (e.g. ambiguity in question/literal truthfulness), will it still rule on the vindictive/selective prosecution motion? In other words, will the court rule on each individual motion to dismiss? Or will it stop once it finds sufficient grounds to dismiss?” — Alex
Hi Alex,
James Comey’s case could be dismissed without a ruling on every pending motion, including the one you highlight that argues his prosecution is unconstitutionally vindictive and selective. Therefore, it’s possible that his case ends without a ruling on that issue.
We can look to one of President Donald Trump’s criminal cases for an example of this.
In the classified documents case, U.S. District Judge Aileen Cannon dismissed it on the grounds that special counsel Jack Smith was unlawfully appointed. When the Trump-appointed judge issued that ruling last year, there were still several unresolved pretrial issues, including a vindictive/selective prosecution motion from Trump, who would go on to win the 2024 election and, as a result, effectively got both of his federal criminal cases permanently dismissed.
(Shortly before she dismissed the classified documents case, Cannon rejected a vindictive/selective prosecution motion from Trump co-defendant Walt Nauta, while emphasizing that the Nauta denial wasn’t to be taken as a comment on the merits of Trump’s motion. The federal judge who worked more quickly in presiding over Trump’s other federal case, Obama appointee Tanya Chutkan, rejected his motion to dismiss on vindictive/selective grounds.)
Like Trump, Comey argues that his prosecutor, Lindsey Halligan, is unlawfully serving. Because Smith and Halligan were installed through different mechanisms, the legal issue is somewhat different. But should the courts deem Halligan’s tenure unlawful (as they have done with other Trump 2.0 appointees) and find that Comey’s case must dismissed due to that illegality, then his prosecution could end without resolving other pending motions, including, potentially, his vindictive/selective prosecution claim. As you note, Comey has filed several motions to dismiss, including one asserting a “literal truth” defense. (The former FBI director pleaded not guilty to lying to and obstructing Congress in connection with 2020 Senate testimony.) At this early point in the litigation, we don’t know when each motion in Comey’s case will be decided. But it could take longer to decide his vindictive/selective prosecution claim than some of his other motions. That’s because instead of immediately deciding whether to grant or dismiss that motion, the judge could order discovery for Comey to investigate and examine the prosecution’s origins and motives. As we have seen, for example, in Kilmar Abrego Garcia’s ongoing effort to prove his charges are vindictive, this sort of litigation can be drawn out, and as in that other case, we should expect the Trump Justice Department to resist attempts to explore its motives for charging Comey. So, because he has raised multiple grounds for dismissing his case pretrial, including the grounds that Halligan is unlawfully serving as his prosecutor, it’s possible that he wins a dismissal before his vindictive/selective prosecution claim is resolved. Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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