James Comey seeks to dismiss his criminal case, citing ‘vindictive’ prosecution

Lawyers for former FBI director James Comey asked a federal judge Monday to dismiss his criminal case on the grounds of “vindictive and selective” prosecution, citing what they argued is President Donald Trump’s personal animus towards Comey, and what they alleged was the unlawful appointment of the U.S. attorney who was tasked with bringing his case. 

Patrick Fitzgerald and Jessica Carmichael, the two lawyers leading Comey’s defense team, submitted the motions Monday afternoon to U.S. District Judge Michael Nachmanoff as part of a broader effort to have his criminal dismissed with prejudice. 

While neither motion was a surprise, the allegations and breadth of information amounted to a significant one-two punch in Comey’s fight to have his case dismissed for vindictive and selective prosecution.

“President Trump ordered the Department of Justice to prosecute Mr. Comey because of personal spite and because Mr. Comey has frequently criticized the president for his conduct in office,” Fitzgerald and Carmichael said on Monday, before ticking through a lengthy timeline of the strained relationship between Trump and his onetime FBI director. 

“The indictment in this case arises from multiple glaring constitutional violations and an egregious abuse of power by the federal government,” they argued.

COMEY SEEKS TO TOSS CRIMINAL CASE CALLING TRUMP PROSECUTOR ‘UNLAWFUL’ APPOINTEE

Comey was charged in the Eastern District of Virginia last month on one count of allegedly making a false statement to Congress during testimony before a Senate committee in 2020, and one count of obstruction stemming from the same event. 

In the weeks since, his criminal case has emerged as a political lighting rod — punctuating years of public broadsides and quietly simmering tensions between Trump and his onetime FBI director. 

“When no career prosecutor would carry out those orders, the president publicly forced the interim U.S. attorney to resign and directed the Attorney General to effectuate ‘justice’ against Mr. Comey,” they noted, adding that much of the damning information has come from Trump himself, or other administration officials. 

The other motion sought to dismiss the case against Comey due to what his lawyers argued is Trump’s “unlawful” appointment of his former personal attorney, Lindsey Halligan, as the acting U.S. attorney for the Eastern District of Virginia.

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Trump announced in September that he was installing Halligan as the top prosecutor for the Eastern District of Virginia, replacing interim U.S. Attorney Erik Siebert, who resigned under pressure to indict both Comey and New York Attorney General Letitia James.

Halligan, Comey’s lawyers argued Monday, was “defectively appointed to her office as an interim U.S. Attorney,” and that his case should therefore be dismissed, since no other attorney in the Eastern District of Virginia or from the executive branch had signed on to Comey’s indictment.

“Because of that fundamental constitutional and statutory defect, the indictment is a nullity and must be dismissed,” Comey’s lawyers argued. 

“The proper remedy for this unconstitutional prosecution is dismissal with prejudice,” his lawyers argued on Monday. “Any lesser remedy would be insufficient in light of the government’s flagrant misconduct and the need to deter the government from bringing further unconstitutional prosecutions.”

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It is notoriously difficult to have a case tossed on the grounds of selective or vindictive prosecution. In order to do so, Comey’s legal team must prove to the court both that prosecutors were acting with genuine animus in bringing the case against him — and that prosecutors singled him out because of that animus. 

Still, the filings made clear that Comey’s legal team has no shortage of evidence to cite in their attempt to meet that burden — including, primarily, statements and admissions made by Trump and administration officials, as they noted Monday.

“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 told the court.

Short of outright dismissal, lawyers for Comey asked the judge on Monday to grant them additional discovery and an evidentiary hearing to examine the government’s “prosecutorial decisions” against Comey.

This would allow them both to examine the evidence used by the government in opening the investigation against him, and against its decision to present the case to a grand jury. 

Next steps in the case are far from clear, though the Justice Department and Trump administration will likely seek to file a lengthy response of their own to rebut the allegations. 

Their responses to the court are due Nov. 3. 

The Justice Department declined to respond to Fox News’s request for comment on the new court filings.