Former FBI Director James Comey’s defense team wants to kill the Trump administration’s case before it goes to trial, but legal experts say their chances of success are slim.
Comey’s attorney Patrick Fitzgerald indicated Wednesday that the defense intends to file motions alleging vindictive and selective prosecution “at the direction of President Trump,” as well as challenging the appointment of the prosecutor who brought the indictment, Interim U.S. Attorney Lindsey Halligan.
If Halligan had not indicted Comey on Sept. 25, the statute of limitations would have expired within days, making it crucial for the government to prevail on a motion to dismiss. However, legal experts told the Daily Caller News Foundation the two motions Comey hopes to file will be difficult to prove.
Comey pleaded not guilty Wednesday to charges for allegedly lying during his September 2020 to Congress about authorizing someone to be “an anonymous source in news reports” and for obstruction of a congressional proceeding.
‘Rarely Granted’
Motions for selective or vindictive prosecution are “rarely granted,” former federal prosecutor Neama Rahmani told the Daily Caller News Foundation, noting the “burden is high” and would require Comey to prove a discriminatory or retaliatory motive.
“Here, President Trump’s social media posts will be used as evidence of animus against Comey and intent to retaliate against him,” Rahmani said. “Even though the President’s rhetoric helps the defense argument, the chances of a selective or vindictive prosecution motion being granted are slim. Trump and Hunter Biden both raised the same argument in their respective criminal cases, and were denied.”
Trump pressed Bondi in a Sept. 20 Truth Social post, which appeared to be a direct message and was later deleted, to explain why “nothing is being done” about Comey, as well as California Sen. Adam Schiff and New York Attorney General Letitia James.
“We can’t delay any longer, it’s killing our reputation and credibility,” Trump wrote.
Former U.S. Attorney for the Eastern District of Virginia Erik Siebert resigned under pressure from Trump to pursue the case, enabling Bondi to appoint Halligan to take his place.
Halligan secured a two-count indictment against Attorney General Letitia James on Thursday for alleged bank fraud and making false statements to a financial institution.
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A motion challenging interim U.S. Attorney Halligan’s appointment “has an even less chance of success” than one for vindictive prosecution, Rahmani told the DCNF.
“Halligan has no prosecution experience, but the Courts have typically upheld these appointments because the Attorney General can make temporary appointments,” he said. “Even if the appointment violated the Appointment Clause or the Vacancies Reform Act, the defect can be cured by having the case reassigned to another Assistant U.S. Attorney. The motion is more of a delay tactic than something that can derail the prosecution.”
However, legal analyst Sol Wisenberg told the DCNF the challenge to Halligan’s appointment “probably has more legs” of the two proposed motions, though both are “very difficult” motions to prevail on.
The question is whether Halligan’s appointment, which came after an interim appointment for Siebert, is permitted by the statute. Siebert’s term expired on May 21, but federal judges in the Eastern District of Virginia allowed him to remain in the position.
“Comey will argue that this is a one-time option and that the appointment of a new acting U.S. Attorney had to be made by the district court,” George Washington University law professor Jonathan Turley explained in a blog post.
“This technicality could derail the case because the Administration does not have the luxury of going back and redoing the indictment,” Turley wrote. “The Trump Administration brought down the indictment shortly before the expiration of the five-year statute of limitations.”
Fitzgerald also previewed on Wednesday a second potential set of motions to dismiss, which the defense has not fully settled, that could be filed later, including a grand jury abuse motion and an “outrageous government conduct” motion.
‘This Judge Knows What He’s Doing’
If any of Comey’s challenges succeed, Turley wrote it could mean the case is “bogged down for years in appeals.”
Yet the judge, who set a Jan. 5 trial date, indicated Wednesday he did not want to see delays.
“The Eastern District of Virginia does operate very, very quickly,” Wisenberg, a partner at the D.C. firm Taylor Duma, told the DCNF.
When the government stated Wednesday it was still working through a significant amount of classified material, the judge warned that he does not want to let this slow the case down.
The defense still has not received discovery material, Fitzgerald said Wednesday, noting they still do not even know the identities of “Person 1” or “Person 3” in the indictment.
Several reports suggest “Person 3,” the individual Comey allegedly authorized to be an anonymous source, is Richman, while “Person 1,” the subject of the investigation information was leaked about, is Hillary Clinton.
The FBI released internal memos in August related to its “Arctic Haze” leak investigation on classified information that ended up in four news articles. The documents describe how Comey directed the FBI to hire Columbia University Professor of Law Daniel C. Richman as a “Special Government Employee” and give him “a Top Secret clearance.”
“The investigation revealed Comey also hired Richman so Comey could discuss sensitive matters, including classified information, with someone outside of the FBI’s regular leadership,” the documents state. “Comey also used Richman as a liaison to the media.”
Judge Michael Nachmanoff, a Biden appointee and the district’s former top public defender, is overseeing the case.
“This judge knows what he’s doing,” Wisenberg said. “He’s also probably smart enough not to make some of the comments the judges in D.C. make…no editorializing.”
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