James Comey filed his motion to dismiss the criminal charges against him based on “vindictive” and “selective” prosecution. If a federal judge agrees with either claim, both of which generally face high bars to succeed, then his case will be dismissed before it gets to trial.
In a 51-page filing Monday, Comey’s lawyers recount his public criticism of Trump, followed by his indictment in a case brought by a hand-picked Trump lawyer. They then argue why the resulting indictment separately meets both the high bars of vindictive and selective prosecution.
Comey has pleaded not guilty to the two-count indictment secured by that hand-picked prosecutor, Lindsey Halligan, for allegedly lying to and obstructing Congress in connection with 2020 congressional testimony.
Vindictive prosecution
On the vindictive point, Comey’s lawyers argue that Trump harbors “genuine animus” toward Comey and that he wouldn’t have been prosecuted “but for” that animus. That language reflects the standard that defendants must meet to successfully argue their prosecutions are vindictive.
“Objective evidence establishes that President Trump directed the prosecution of Mr. Comey in retaliation for Mr. Comey’s public criticisms and to punish Mr. Comey because of personal spite,” they wrote.
They said the “smoking-gun evidence” is a social media post from the president to Attorney General Pam Bondi calling for action against Comey and others. Trump touted Halligan (who lacked prosecutorial experience) as a “really good lawyer,” after which Bondi “purported” to appoint Halligan as the interim head of the U.S. Attorney’s Office in the Eastern District of Virginia. (Comey’s lawyers called Halligan’s appointment “purported” because they are also challenging the legality of her appointment, which they argued against in a separate motion Monday.)
Selective prosecution
On the selective point, they argue that the former FBI director was “singled out” due to his “protected speech.”
They said that at least four other heads of agencies during Trump’s first term made false statements but weren’t prosecuted: Attorney General Jeff Sessions, Environmental Protection Agency head Scott Pruitt, Health and Human Services head Tom Price, and Treasury Secretary Steve Mnuchin.
“Those individuals and Mr. Comey have been accused of engaging in similar conduct (making misleading statements) to the same government body (the United States Senate) while serving in similar roles (heads of Executive Branch agencies) at the same time (the first months of President Trump’s first term),” Comey’s lawyers wrote in Monday’s motion. They concluded that dismissing Comey’s case “is the only remedy that will vindicate fundamental constitutional values and deter the government from vindictively and selectively prosecuting perceived political opponents.” The DOJ’s response is due Nov. 3, with a hearing on the issue set for Nov. 19. Trial is scheduled for Jan. 5 — if the case isn’t dismissed by then on these or other grounds. 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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