Comey Asks Judge to Dismiss Indictment, Calling It 'Vindictive and Selective'

Former FBI Director James Comey returned to federal court this week as his lawyers urged a judge to dismiss a two-count indictment they say is the product of a "vindictive and selective" prosecution. The charges stem from testimony Comey gave to the Senate Judiciary Committee more than five years ago; he has pleaded not guilty and says the case reflects political targeting by former President Donald Trump.

Defense arguments

In recent filings, Comey's attorneys described the prosecution as an "egregious abuse of power," alleging the indictment contains "multiple glaring constitutional violations." They contend the charges were pursued out of "personal spite" because Comey publicly criticized Mr. Trump after his 2017 firing as FBI director.

The defense asked the court to dismiss the indictment with prejudice — which would prevent prosecutors from refiling the case — arguing that without such a dismissal Comey could face a perpetual risk of retaliatory prosecutions. To obtain dismissal on grounds of vindictive or selective prosecution, defendants must meet a high legal bar.

For a vindictive-prosecution claim, a defendant must show the prosecutor acted with "genuine animus" and brought charges to punish the exercise of a protected right. For a selective-prosecution claim, the defendant must show the government acted with a discriminatory purpose, for example by treating similarly situated individuals differently.

Comey's lawyers say there is direct evidence of animus in Mr. Trump's repeated public attacks, submitting nearly 60 pages of social media posts dating to May 2017 that, they say, show the president sought to retaliate against Comey for his public criticism. The defense also pointed to the timing of the indictment — brought days before a five-year statute of limitations would have expired — and to the appointment of Lindsey Halligan, a former White House aide and the president's former personal lawyer, as interim U.S. attorney in the Eastern District of Virginia.

Justice Department response

Justice Department lawyers counter that Comey's allegations rely on news reports, social-media posts and conjecture and fail to meet the "rigorous legal standard" required to dismiss an indictment. The DOJ noted that senior government officials have been prosecuted for allegedly lying to Congress and argued that Halligan, who sought the indictment, has not been shown to harbor animus toward Comey.

Prosecutors wrote that the indictment was presented by an appropriately appointed and impartial prosecutor and that a grand jury found probable cause. They say the case centers on alleged false testimony and obstruction of Congress, conduct they describe as an "extraordinary" breach of public trust.

Procedural developments

The case has seen notable procedural twists since the indictment was returned in late September. A federal magistrate judge ordered the government to turn over all grand jury materials to Comey's defense, citing what the magistrate described as a "disturbing pattern of profound investigative missteps," including questions about how evidence was handled and about Halligan's conduct before the grand jury. That order has been temporarily stayed by U.S. District Judge Michael Nachmanoff while the Justice Department appeals.

Comey's team has also joined arguments by New York Attorney General Letitia James, who faces separate federal charges, that Halligan's appointment was unlawful; a federal judge said she expects to rule on that appointment issue by Thanksgiving.

The court will now consider whether the defense has met the high legal threshold to dismiss the indictment. If the judge denies the motions, the case would proceed toward trial; if the judge grants a dismissal with prejudice, the charges could not be refiled.