James Comey launches major efforts to have case thrown out
By Holmes Lybrand, Hannah Rabinowitz, Devan Cole, CNN
(CNN) — Former FBI Director James Comey launched two efforts Monday to have the federal charges he faces for allegedly lying during congressional testimony thrown out: one that claims his case is the result of a personal vendetta by President Donald Trump, and one that says the prosecutor in charge is illegitimate.
The motions begin Comey’s official defense in the case brought against him by Trump’s Justice Department in late September.
Comey’s attorneys argued Monday that the criminal charges he faces amount to an “egregious abuse of power by the federal government.”
“The United States Constitution entitles individuals to speak out against the government and, in turn, forbids the government from retaliating against individuals for their protected speech,” his attorneys wrote, adding, “but that is exactly what happened here.”
He has pleaded not guilty to the two charges that he provided false statements and obstructed a congressional proceeding.
Selective and vindictive prosecution
The former FBI director’s lawyer said he was “singled out” for prosecution because he has publicly criticized Trump and that the president has made no secret of his “personal spite” for Comey.
The argument that Trump directed the prosecution, though expected, has so far been the hallmark of Comey’s defense strategy. And in a response to his indictment, Comey said on social media that “there are costs to standing up to Donald Trump.”
Requests by defendants for their charges to be dropped based on a claim that they’re being unfairly targeted are rarely granted, but legal experts have said it’s possible judges could be more receptive to such efforts in cases like Comey’s given the bevy of public comments by Trump and other officials attacking people the Justice Department is criminally pursuing.
As part of Monday’s filings, Comey’s legal team provided Judge Michael Nachmanoff with an extensive list of public statements capturing the former FBI director’s criticism of Trump, and Trump’s subsequent posts attacking Comey. Comey’s lawyers called Trump’s posts “smoking evidence” of an unfair prosecution.
“In response to Mr. Comey’s protected speech, President Trump has resorted to personal attacks and calls to retaliate against Mr. Comey through punishment and imprisonment,” Comey’s lawyers wrote. “The pattern of President Trump’s statements and actions demonstrate a clear intent to subject Mr. Comey to ‘[o]fficial reprisal for [his] protected speech.’”
Comey’s attorneys are also asking the judge to give them permission to pry into the Justice Department’s “prosecutorial decisions” behind its conclusion not to charge other officials who served in top positions in Trump’s first administration.
Disqualifying the US attorney
Comey is arguing that the indictment against him should be thrown out because Trump’s appointment of the interim US attorney who brought charges was entirely unlawful.
Trump appointed White House adviser Lindsey Halligan, who brought the Comey indictment herself, as the interim US attorney for the Eastern District of Virginia after the former interim US attorney, Erik Siebert, was forced out amid pressure to bring a separate indictment against New York Attorney General Letitia James.
Comey’s attorneys argued that the previous interim US attorney had already served the legally allotted 120-days that someone can serve as interim before needing to be confirmed by the Senate.
Halligan’s appointment after those 120 days had passed means that Trump was not able to appoint a new interim and avoid the senate confirmation process altogether, Comey’s attorneys argue, calling the move a scheme to “circumvent” Congress’ role in the confirmation process.
Any differing interpretation of the Constitutions’ Appointments Clause would “allow the government to string together sequential 120-day appointments,” his attorneys added, “and thereby indefinitely or perpetually evade Congress’s default requirement of Senate advice and consent.”
Comey’s attorneys pointed to Trump’s own indictment in Florida to argue Halligan’s appointment was unlawful, noting that a federal judge dismissed the case on similar grounds.
In that case, special counsel Jack Smith – who was appointed by the attorney general at the time – charged the then-former president with unlawfully retaining classified documents at his Florida estate following his first term.
The federal judge presiding over that case dismissed the charges against Trump, concluding that Smith’s appointment had “not been authorized by law” because, in part, Congress had not approved his appointment.
“Only a dismissal with prejudice is sufficient to address and deter the Executive Branch’s willfully unlawful conduct in this case,” Comey’s attorneys concluded.
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