Moves to kill the criminal case against him

‘Egregious abuse of power’: Comey moves to kill the criminal case against him

In addition to calling the case an illegal “vindictive” prosecution, the former FBI director said the prosecutor who brought the case had no authority to do so.

By Josh Gerstein and Kyle Cheney

Former FBI Director James Comey said Donald Trump’s yearslong personal vendetta against him — and the president’s direct, public instructions to Justice Department prosecutors to charge him — should result in the immediate dismissal of the new criminal case against him.

Comey’s attorney Patrick Fitzgerald called the case “an egregious abuse of power” that can be traced directly to a Sept. 20 social media post by Trump demanding the immediate prosecution of his political enemies, including Comey.

“President Trump posted a statement on social media that provides smoking-gun evidence that this prosecution would not have occurred but for the President’s animus toward Mr. Comey,” Fitzgerald wrote.

The argument was part of a double-barreled attack Comey unleashed Monday, urging a judge to shut down the unusual and hastily brought criminal case, which accuses Comey of lying to Congress during a 2020 Senate hearing focused on the FBI’s investigation into the 2016 Trump campaign’s contacts with Russia.

In addition to one motion calling the case an illegal “vindictive” prosecution, Comey brought a second motion Monday contending that the prosecution was brought by a prosecutor — Trump’s former personal lawyer Lindsey Halligan — who had no authority to bring the charges.

“The eleventh-hour appointment of a political ally for the express purpose of prosecuting a longtime critic, accompanied by a social media post pushing the DOJ to indict—is decisive evidence that the government would not have prosecuted Mr. Comey but for his ‘expression of ideas’ that President Trump disliked,” Fitzgerald wrote in the first motion.

Fitzgerald also pointed to four former Trump Cabinet officials who were spared prosecution despite similar allegations that they lied to Congress.

One potential weakness in the selective prosecution motion: It relies in part on what Comey’s defense calls “widespread and corroborated reporting” by the media about the refusal of various career prosecutors to seek an indictment in the case.

Courts don’t typically accept news reports as proof of underlying events, although they can sometimes be enough to prompt judges to allow defense lawyers to seek admissible proof such as documents or sworn depositions. Comey’s lawyers are asking U.S. District Judge Michael Nachmanoff to allow them to gather such proof if he doesn’t accept the defense argument that the existing public record is more than enough to justify dismissing the case against Comey.

Comey is urging Nachmanoff, a Biden appointee, to dismiss the case “with prejudice” — meaning the Trump administration would be barred from attempting to make a second effort to prosecute Comey on similar charges. Anything less, he contends, would give the Trump administration an unfair second chance to correct the procedural flaws that it flouted in the first place to secure the indictment.

“That is the only way to cure the government’s flagrant misconduct and to deter similar future prosecutions of perceived political opponents,” Comey’s lawyers wrote.

Nachmanoff said earlier this month that he intends to direct Comey’s challenge to Halligan’s appointment to a judge outside the Eastern District of Virginia, due to the potential conflict inherent in it being handled by judges who regularly interact with that prosecutor’s office.