If the Trump administration’s prosecution of James Comey isn’t “selective” and “vindictive,” then those words have lost all meaning. But in the law, those words carry technical implications beyond their straightforward dictionary definitions and commonsense usages. So it’s worth keeping in mind that Comey’s case won’t automatically be dismissed on those grounds if his lawyers raise them, even if they do manage ultimately to get the case tossed.
Defense motions to dismiss for selective and vindictive prosecution are difficult to win, as President Donald Trump himself learned when he lost such a motion in one of his federal criminal cases — which he nonetheless got dismissed by winning the 2024 election. But he and the Justice Department officials doing his bidding have given Comey and his legal team some material to work with in this new case, which could wind up being a rare example of one that gets tossed out pretrial.
To be sure, the former FBI director reacted to his indictment on charges of lying to Congress and obstruction by maintaining his innocence and saying, “Let’s have a trial.” But if his lawyers first seek to get the case dismissed — and it would be weird if they don’t try — then vindictive and selective prosecution could be among their pretrial arguments.
Before turning to the law, let’s recap some of the recent facts that led to Thursday’s indictment. The president publicly complained that Comey, whom he fired in his first term and who has since spoken out against the president, hadn’t been criminally charged yet by his administration. The federal prosecutor overseeing the Virginia office that was investigating Comey resigned after raising concerns about such a prosecution. The administration then installed a former Trump personal lawyer without prosecutorial experience, Lindsey Halligan, who presented the case to the grand jury herself, over the objection of experienced prosecutors, leading to Comey’s indictment.
That all sounds “selective” and “vindictive” as those words are commonly understood. But let’s look at how this could play out in court, mindful that selective prosecution and vindictive prosecution are two separate legal claims.
Starting with selective prosecution, defendants bringing such motions must show that they were singled out among “similarly situated” people who weren’t charged, and that they were charged for discriminatory reasons such as race, religion or other arbitrary classification, such as having exercised their legal rights. If Comey’s lawyers bring such a motion, then they might focus on that last category and argue that he was targeted for speaking out against Trump or for engaging in some other legally protected activity. They would also need to show that other “similarly situated” people haven’t been charged.
Turning to vindictive prosecution, defendants must show that the prosecutor acted with genuine animus toward the defendant and that the defendant was prosecuted because of that animus. That seems to describe what happened here, with Halligan being a Trump loyalist pursuing his longstanding grudge against Comey, despite experienced prosecutors’ own dim view of the case — but again, the legal standard is favorable to the government in giving prosecutors great deference, especially for their charging decisions.
With that in mind, as farcical as such an argument would be, Halligan might claim she made an independent judgment to bring the case (over the objection of people who have prosecuted many cases before and who aren’t politically beholden to the president) — and, she might add, a grand jury agreed there was probable cause to go forward on two of the three charges she presented. Remember, too, that all of this is grounded in a legal presumption of broad prosecutorial discretion and the notion that the government generally acts lawfully. It’s a presumption that the Trump DOJ has shown it does not deserve, and this case is a prime example of why. If Comey’s lawyers raise such a motion on selective or vindictive grounds, then an initial question could be whether the judge will pierce that unwarranted presumption and permit discovery into the matter. The administration didn’t bring this case to put itself on trial, but that could be one result of having brought this case and all but invited such a defense motion. Even getting discovery on such a claim would be a defense win, regardless of the outcome. In the end, Comey’s lawyers could prevail on these rare grounds, but despite the almost comically corrupt circumstances leading to this indictment, success wouldn’t be guaranteed. His arraignment is set for Oct. 9, so we could learn more about his defense plans in the coming days and weeks. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
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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