Seeking to dismiss the government’s case, James Comey argues vindictive prosecution and selective prosecution.
Assistance from Claude AI.
This is a defense motion filed by James B. Comey, Jr., the former FBI Director, asking a federal court to dismiss a two-count criminal indictment against him. The charges stem from testimony he gave to Congress in 2020, where prosecutors allege he made false statements about whether he authorized someone to serve as an anonymous source to news media regarding FBI investigations.
The Core Legal Arguments
The defense is making two fundamental constitutional claims that represent some of the most serious accusations you can level at a prosecution. Think of these as arguing that the entire prosecution is poisoned at its root, not just that the government got the facts wrong.
The first argument centers on vindictive prosecution. This legal doctrine says the government cannot prosecute someone as retaliation for exercising constitutional rights or based on personal animus. The defense presents what they characterize as a clear timeline: Comey repeatedly criticized President Trump publicly after leaving government service, Trump responded with years of hostile statements and threats, career prosecutors declined to bring charges, Trump forced out prosecutors who wouldn’t indict Comey, and then Trump installed a personal ally who immediately brought charges days before the statute of limitations expired.
The second argument involves selective prosecution. This principle holds that the government cannot single out one person for prosecution while ignoring similarly situated people who committed comparable acts. The motion identifies four other Trump administration officials—Attorney General Jeff Sessions, EPA Administrator Scott Pruitt, HHS Secretary Tom Price, and Treasury Secretary Steve Mnuchin—who allegedly made false statements to Congress but were never charged.
The Factual Narrative
The motion paints a detailed picture of events. It describes how multiple investigations by career prosecutors examined Comey’s conduct and declined to bring charges. The defense emphasizes that even Special Counsel John Durham, whose investigation was specifically focused on the Russia inquiry matters, reportedly found no basis for charging Comey.
The pivotal moment, according to the defense, came when President Trump posted on social media directly addressing Attorney General Pam Bondi, complaining that nothing was being done about Comey despite him being “guilty as hell,” and explicitly naming Lindsey Halligan as someone who should handle the matter. Within forty-eight hours, Halligan was appointed interim U.S. Attorney. Four days later, she obtained the indictment.
Evaluation of the Arguments
From a legal perspective, these arguments face significant hurdles because courts traditionally give prosecutors enormous deference in charging decisions. The “presumption of prosecutorial regularity” means defendants typically must overcome a strong assumption that prosecutors acted properly.
However, several factors make this motion unusually strong:
The evidence of alleged animus is unusually direct and public. Most vindictive or selective prosecution claims rely on circumstantial evidence and require defendants to speculate about prosecutors’ motivations. Here, the defense can point to years of public statements by the President explicitly calling for Comey’s prosecution, characterizing him as a criminal, and celebrating when charges were finally brought.
The procedural irregularities are striking. The appointment of someone with no prosecutorial experience to handle a sensitive case against a prominent former official, immediately after forcing out career prosecutors, creates an unusual factual record. Courts have found vindictive prosecution where the government “followed unusual discretionary procedures,” and this certainly qualifies.
The comparator evidence is relatively strong. In selective prosecution cases, defendants often struggle to identify truly similar individuals who weren’t prosecuted. Here, the defense identifies multiple officials from the same administration, in similar roles, who allegedly made false statements to the same body (Congress) during the same general timeframe.
The weaknesses in the arguments:
The government will likely argue that prosecutorial decisions involve complex judgments about evidence strength, witness credibility, and resource allocation that courts shouldn’t second-guess. They might contend that the evidence against Comey is stronger than against the comparators, or that different offices made independent judgments.
The government could also argue that even if political pressure existed, that doesn’t prove the prosecution lacks merit. Presidents have always had strong views about criminal justice matters, and expressing those views doesn’t automatically taint prosecutions.
The legal standard for dismissal is intentionally difficult. Courts recognize that allowing defendants to routinely challenge prosecutorial motives would paralyze the criminal justice system.
The Remedy Sought
The defense asks for dismissal with prejudice, meaning Comey could never be prosecuted again for these alleged crimes. They argue this is necessary because the statute of limitations would have expired but for the government’s misconduct, and anything less would reward the constitutional violations.
Alternatively, they request discovery into the government’s decision-making process and an evidentiary hearing, which would force prosecutors to explain their charging decisions under oath.
Significance
Regardless of the merits, this motion represents a serious constitutional challenge to prosecutorial power. The underlying question goes to the heart of the rule of law: can a president use the criminal justice system to pursue personal or political enemies? The motion essentially argues that if these facts don’t constitute vindictive and selective prosecution, then those doctrines provide no meaningful protection at all.
The court’s decision will likely turn on whether the objective evidence of improper motivation is so overwhelming that it overcomes the normal presumption of prosecutorial regularity. This is genuinely difficult legal terrain where reasonable judges could reach different conclusions about how to balance prosecutorial discretion against constitutional protections.
United States v. Comey (1:25-cr-00272)
https://storage.courtlistener.com/recap/gov.uscourts.vaed.582136/gov.uscourts.vaed.582136.59.0_3.pdf