Heading into James Comey’s arraignment Wednesday, the question wasn’t whether the former FBI director would plead guilty or not guilty at this early stage — he did the latter, naturally — but rather what we would learn about how the case’s next steps would unfold.
We learned that the presiding judge wants to move things along expeditiously toward a Jan. 5 trial, and that the defense wants to do the same while raising serious challenges to the indictment in hopes of getting it dismissed pretrial.
Patrick Fitzgerald, a former top federal prosecutor now representing Comey, led the defense at the hearing and asked to file two rounds of motions later this month, a schedule that U.S. District Judge Michael Nachmanoff approved.
First round: Selective/vindictive prosecution and unlawful appointment
Fitzgerald flagged two big issues, either of which could kill the case against the former FBI director before it sees a jury. Both motions will put the political machinations leading to the Trump critic’s indictment at the center of the legal case.
The first of those two issues is what’s known as “vindictive” or “selective” prosecution. As I previously explained, those are two separate arguments that take on specific legal meanings beyond how normal people would use those seemingly commonsense terms outside of court.
For 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. For selective prosecution, defendants must show that they were singled out among “similarly situated” people who weren’t charged, and that they were charged for discriminatory reasons, which include race, religion or other arbitrary classification, such as having exercised their legal rights.
Both claims are difficult for defendants to win, but the Trump administration has given Comey some material to work with. As Fitzgerald put it Wednesday: “Our view is that this prosecution was brought at the direction of President Trump to silence a constant critic of him.”
The other big motion Fitzgerald flagged for this first round of litigation is a challenge to the appointment of the prosecutor, Lindsey Halligan, a former personal lawyer to Donald Trump whom the administration installed to lead the U.S. attorney’s office in the Eastern District of Virginia after ousting the previous head, who resisted bringing the case. “We think that’s an unlawful appointment,” Comey’s lawyer said Wednesday of Halligan’s installation.
Halligan had never prosecuted a case before, she apparently presented Comey’s case herself to the grand jury and she was only joined by other prosecutors for the government on the docket the day before the arraignment, when two federal prosecutors from a North Carolina office — Tyler Lemons and Gabriel Diaz — joined her, further suggesting that no one in the Virginia office was willing to collaborate in the effort.
Lemons led the government at the arraignment. In addition to Fitzgerald, Comey is represented by another experienced lawyer in Jessica Carmichael.
This first round of motions is due from the defense on Oct. 20, with the government’s response due Nov. 3 and Comey’s final reply due Nov. 10, followed by a hearing on those arguments on Nov. 19.
Second round: Other issues, potentially including ‘outrageous government conduct’
Fitzgerald acknowledged that he wasn’t sure exactly which remaining issues the defense will press, but he flagged other possibilities for a second round of motions, including a “literal truth defense,” “grand jury abuse” and “outrageous government conduct.”
In flagging the “literal truth” motion, Fitzgerald mentioned “Bronston,” an apparent reference to the 1973 Supreme Court case Bronston v. United States, in which the court said that a witness couldn’t be convicted of perjury for giving an answer under oath that’s literally true but not responsive to the question and arguably misleading by implication.
Comey’s two-count indictment alleges he falsely testified and obstructed Congress during congressional testimony in 2020 about whether he had authorized anyone at the bureau to be an anonymous source in news reports related to an FBI investigation. The indictment isn’t entirely clear about what Halligan intends to prove or how, which is another issue that Fitzgerald raised Wednesday in seeking further discovery from the government in order to make his motions. The judge issued an order to quickly resolve discovery issues. Whatever motions come in this second round are due Oct. 30, with the government response due Nov. 13 and Comey’s final reply due Nov. 20, followed by a Dec. 9 hearing on those arguments. Nachmanoff, a Joe Biden appointee, made clear at several points during the arraignment that he doesn’t want the case to get sidetracked. But some potential complications emerged that could affect how the case proceeds. One issue is classified information, whose handling could involve additional litigation procedures or it needing to be declassified. It’s unclear what this information is exactly or what its relevance is to the case, but Lemons said there’s a “significant amount” of such information. Because it’s unclear what that information is or its relevance, it’s difficult to know how it will affect the case, if at all. But the judge said that there should be “no reason” that the case “gets off track because of the existence of some classified information.” Another issue, flagged by Nachmanoff, is that a judge from a different district would need to handle the challenge to Halligan’s appointment. Again, the judge noted that that would be “easily dealt with”; but it is, he said, “an additional wrinkle or complication.” He emphasized that it “will not affect the scheduling of the trial or the resolution of any other motions.” While Nachmanoff set a tone of keeping the case on track, another lurking question is whether there will be any appeals attempted by the losing party on any of these pretrial motions. However the litigation develops, it seems that there won’t be any significant delays if the judge can help it. 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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