Comey asks judge to dismiss criminal charges claiming selective prosecution

Ex-FBI director claims he is victim of selective prosecution and charges were filed by unlawfully appointed attorney

Former FBI director James Comey has formally asked a federal judge to dismiss criminal charges against him, arguing he was the victim of a selective prosecution and that the US attorney who filed the charges was unlawfully appointed.

“The record as it currently exists shows a clear causal link between President Trump’s animus and the prosecution of Mr Comey,” Comey’s lawyers wrote in their request to dismiss the case, calling a 20 September Truth Social post in which he disparaged Comey and called for his prosecution “smoking gun evidence”. They continued: “President Trump’s repeated public statements and action leave no doubt as to the government’s genuine animus toward Mr Comey.”

Comey’s lawyers attached an exhibit to their filing on Monday, which contains dozens of public statements from Trump criticizing Comey.

Comey was indicted on 25 September with one count of making a false statement and one count of obstructing a congressional proceeding. The charges are related to Comey’s September 2020 testimony before Congress, and are connected to Comey’s assertion he had never authorized anyone at the FBI to leak information. The precise details of the offense have not been made public and Comey has pleaded not guilty. He has forcefully denied wrongdoing.

Charges were filed against Comey even though career prosecutors in the justice department determined that charges were not warranted. Trump forced out Erik Siebert, the US attorney for the eastern district of Virginia, in September and installed Lindsey Halligan, a White House aide. The Comey charges were filed days later.

“In the ordinary case, a prosecutor’s charging decision is presumptively lawful and rests within her broad discretion. This is no ordinary case,” Comey’s lawyers wrote. “Here, direct evidence establishes that the president harbors genuine animus toward Mr Comey, including because of Mr Comey’s protected speech, that he installed his personal attorney as a ‘stalking horse’ to carry out his bidding; and that she then prosecuted Mr Comey – days before the statute of limitations expired, with a faulty indictment – to effectuate the president’s wishes.”

Comey’s Monday filing said the fact that career prosecutors did not believe there was sufficient evidence to bring a case bolsters the argument that he was selectively prosecuted. His lawyers also argue that the indictment mischaracterizes the question Comey was asked that prompted an answer prosecutors say was a lie and the basis of his criminal false statement.

According to the charging indictment, Comey told a US senator he “had not ‘authorized someone else at the FBI to be an anonymous source in news reports’ regarding an FBI investigation concerning PERSON 1”. Comey’s lawyers wrote in their filing on Monday that “Person 1” was Hillary Clinton.

The accusation relates to a question from Senator Ted Cruz of Texas. During the 2020 hearing, Cruz noted that in 2017 congressional testimony, Comey denied “ever authoriz[ing] someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton administration”. Cruz went on to note that Andrew McCabe, the former deputy director of the FBI, had said Comey authorized him to leak information to the Wall Street Journal.

In response, Comey said he stood by his prior testimony. Comey’s lawyers argued on Monday that the indictment was defective because Cruz’s question had been focused on McCabe, but the government informed them that the person Comey is alleged to have authorized to leak to the media is Daniel Richman, a friend of Comey’s and professor at Columbia University.

“The indictment omits Senator Cruz’s words that explicitly narrow the focus of his questions to Mr McCabe and misleadingly implies that the questioning related to Mr Richman. In fact, Mr Comey’s September 2020 exchange with Senator Cruz made no reference whatsoever to Mr Richman, who ultimately appears in the indictment,” they wrote. They also note that Cruz asked about the “Clinton administration” and not “Hillary Clinton”.

Career prosecutors interviewed Richman as part of their investigation into Comey and found him not helpful to making a case, according to the New York Times. John Durham, a special counsel appointed to investigate the FBI’s inquiry into Russian meddling, also told investigators he did not uncover evidence to support charges against Comey.

Comey’s lawyers also argued on Monday that the case should be dismissed because Halligan was not lawfully appointed.

“The United States cannot charge, maintain, and prosecute a case through an official who has no entitlement to exercise governmental authority,” they wrote.

US attorneys must be confirmed by the Senate and can only serve for 120 days on an interim basis unless their appointment is extended by the judges overseeing their district. Siebert, Halligan’s predecessor, served for the 120-day limit and Halligan does not appear to have met other exceptions that would allow her to continue to serve.

“The period does not start anew once the 120-day period expires or if a substitute interim US attorney is appointed before the 120-day period expires,” Comey’s attorneys wrote.

Halligan has also overseen criminal fraud charges against New York’s attorney general, Letitia James, in connection to allegations she lied on mortgage documents. James has said she is not guilty. Legal experts have said that case does not appear to be strong.