FBI Director James Comey, who was fired for his handling of the FBI’s investigation into Trump, may now become the test case for whether a President can use prosecutorial power against political enemies – the very thing Comey warned about when Trump first took office. Comey argues vindictive and selective prosecution. This is an analysis of Comey’s motion to dismiss and to government’s motion in opposition.
The case is United States v. Comey, 1:25-cr-00272, (E.D. Va.). Documents are available on CourtListener at docket/71459120/united-states-v-comey/. The two documents analyzed here are numbers 59 and 138.
Analysis assisted by Claude AI.
Context and Background
This case involves James Comey, who served as FBI Director from 2013 until President Trump fired him in May 2017. The charges stem from testimony Comey gave to Congress in September 2020 about his handling of FBI investigations during the 2016 presidential election.
The Charges:
Comey faces two felony counts:
- Making false statements to Congress – allegedly lying when he testified that he never authorized anyone at the FBI to be an anonymous source for news reports
- Obstruction of a Congressional investigation – allegedly making false statements to impede Congress’s investigation
The government alleges that Comey actually did authorize Columbia Law Professor Daniel Richman to serve as an anonymous source about FBI investigations, particularly concerning Hillary Clinton’s emails and interactions between Comey and President Trump.
What is a Motion to Dismiss?
Before explaining the legal arguments, it’s important to understand what’s happening here. In criminal cases, defendants can file motions asking the judge to dismiss charges before trial. These motions argue that even if the government’s allegations are true, the case should be thrown out for legal reasons – such as constitutional violations in how the prosecution came about.
Comey isn’t arguing he’s innocent; he’s arguing the prosecution itself is unconstitutional.
Comey’s Core Arguments
1. Vindictive Prosecution
What is vindictive prosecution?
The Constitution prohibits the government from prosecuting someone to punish them for exercising their rights (like free speech) or based on personal animus. This is called “vindictive prosecution” and violates the Due Process Clause of the Fifth Amendment.
Comey’s vindictive prosecution argument:
Comey presents a compelling narrative of retaliation:
- Timeline of animosity: After being fired in 2017, Comey became a vocal critic of Trump, calling him “morally unfit” and urging voters not to re-elect him. Trump responded with years of attacks on social media, calling Comey a “slime ball,” “leaker,” “corrupt,” and stating he “should be prosecuted.”
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The smoking gun post: On September 20, 2025, Trump posted on Truth Social directly addressing Attorney General Pam Bondi: “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done… Lindsey Halligan is a really good lawyer… We can’t delay any longer, it’s killing our reputation and credibility… JUSTICE MUST BE SERVED, NOW!!!”
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Career prosecutors refused: Multiple career prosecutors investigated Comey over the years and declined to bring charges. Even the Trump administration’s own Special Counsel John Durham reportedly found no evidence supporting charges.
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Last-minute maneuvering: When interim U.S. Attorney Erik Siebert wouldn’t indict Comey, Trump publicly said he wanted Siebert “out.” Within 48 hours of Trump’s September 20 post:
- Siebert resigned
- Lindsey Halligan (a White House aide with no prosecutorial experience) was appointed interim U.S. Attorney
- Four days later, she secured Comey’s indictment – just days before the statute of limitations expired
- Trump’s celebration: After the indictment, Trump posted celebrating Comey as “one of the worst human beings this Country has ever been exposed to” and specifically thanked Halligan and FBI Director Kash Patel.
Legal test for vindictive prosecution:
To prove vindictive prosecution, Comey must show through objective evidence:
1. The prosecutor (or someone controlling them) acted with genuine animus toward him
2. He would not have been prosecuted but for that animus
Comey argues he’s met both prongs through Trump’s statements and actions.
2. Selective Prosecution
What is selective prosecution?
Equal protection principles prohibit the government from singling out individuals for prosecution based on arbitrary factors like their political views or exercise of First Amendment rights. The prosecution must apply laws evenly.
Comey’s selective prosecution argument:
Comey identifies four Trump administration officials who allegedly made false statements to Congress during their confirmation hearings but were never prosecuted:
- Jeff Sessions (Attorney General): Allegedly lied about contacts with Russian officials during the 2016 campaign
- Scott Pruitt (EPA Administrator): Allegedly lied about using private email for state business
- Tom Price (HHS Secretary): Allegedly lied about receiving a special stock deal
- Steve Mnuchin (Treasury Secretary): Allegedly lied about his bank’s foreclosure practices
Comey argues these individuals are “similarly situated” – they all made allegedly false statements to the Senate while serving (or about to serve) as agency heads. The key difference? They weren’t Trump critics; some are Trump allies.
Legal test for selective prosecution:
To prove selective prosecution, a defendant must show “clear evidence” of:
1. Discriminatory effect: Similarly situated individuals were not prosecuted
2. Discriminatory purpose: The prosecution was motivated by an impermissible reason (like retaliation for speech)
3. Remedy Sought
Comey asks for dismissal with prejudice – meaning the charges cannot be refiled. He argues this is necessary because:
– Dismissal without prejudice would reward the government’s manipulation of the statute of limitations
– Any lesser remedy fails to deter future unconstitutional prosecutions
– The government’s conduct was so egregious it requires the strongest remedy
The Government’s Response
The government’s response is a vigorous defense of prosecutorial discretion and separation of powers.
Core Counter-Arguments
1. No Direct Evidence of Prosecutor’s Animus
The government makes a crucial distinction: the relevant question is whether U.S. Attorney Halligan had vindictive motives, not President Trump. Comey provides no evidence of Halligan’s personal animus.
The government argues:
– Even if Trump wanted Comey prosecuted, that doesn’t prove Halligan acted improperly
– Trump explicitly stated he did NOT order the prosecution: “I think I’d be allowed to get involved if I want, but I don’t really choose to do so”
– Courts have consistently refused to “impute” animus from one person to the actual prosecutor
2. Trump’s Posts Show Legitimate Concerns, Not Vindictiveness
The government reframes Trump’s social media history:
- “Vindictiveness” in legal terms has a specific meaning: prosecuting someone to punish them for exercising their rights
- Trump’s posts consistently express belief that Comey committed crimes – lying under oath and leaking classified information
- The first post accusing Comey of crimes came on May 21, 2017 – before Comey became a vocal Trump critic (June 8, 2017)
- Trump’s September 20 post says Comey is “guilty as hell” – expressing belief in criminality, not intent to punish speech
3. Timeline Disproves Retaliation Theory
The government points out that Trump accused Comey of lying to Congress about leaks in 2017-2018, long before this prosecution. If Trump wanted to prosecute Comey for speech, why wait eight years?
4. The Comparators Are Not Similarly Situated
This is perhaps the government’s strongest argument. The four officials Comey cites made allegedly false statements about:
– Actions they took before becoming agency heads
– Matters unrelated to their official government duties
– Issues raised during confirmation hearings
By contrast, Comey allegedly:
– Lied about actions he took while serving as FBI Director
– Made false statements about his official conduct as head of a law enforcement agency
– Obstructed Congressional oversight of the FBI
The government argues there’s “an obvious distinguishable legitimate prosecutorial factor”: the Executive Branch has always prioritized prosecuting high-level officials who lie about their official actions. Examples include:
– Watergate officials (Haldeman, Ehrlichman)
– Iran-Contra officials (Caspar Weinberger, Clair George)
– David Safavian (GSA official who lied about dealings with a lobbyist)
5. Separation of Powers and Presumption of Regularity
The government emphasizes fundamental principles:
– Deciding whom to prosecute is “the special province of the Executive Branch”
– Prosecutorial decisions carry a “presumption of regularity”
– The defendant bears a “heavy burden” to overcome this presumption with “clear evidence”
– Judicial interference with prosecutorial discretion risks violating separation of powers
6. The Alleged Crime is Serious
The government stresses what Comey is actually charged with:
– Lying under oath to Congress about whether he authorized leaks
– Obstructing Congressional investigation into FBI conduct
– The emails show Comey corresponded with Richman about media strategy, with Richman acting as an intermediary with reporters
– After one interaction, Richman texted: “Just got the point home to [Reporter 1]. Probably was rougher than u would have been”
– Comey replied about a resulting article: “Well done my friend. Who knew this would be so uh fun”
The government argues these are not the actions of an innocent man but of someone who coordinated media leaks through a cutout.
The Legal Standards: Who Has the Burden?
Understanding the legal standards is crucial to evaluating who has the better argument.
For Vindictive Prosecution:
Defendant’s burden:
– Must provide “direct evidence” of vindictive motive (very hard to get)
– OR show circumstances that create a “presumption of vindictiveness” (almost impossible in pretrial setting)
– Must prove prosecutor acted with genuine animus
– Must prove he wouldn’t have been prosecuted but for that animus
For discovery: Must show “realistic likelihood of vindictiveness” with objective evidence
For dismissal: Must prove actual vindictiveness with direct evidence
For Selective Prosecution:
Defendant’s burden:
– Must show “clear evidence” of both:
1. Discriminatory effect (similarly situated people not prosecuted)
2. Discriminatory purpose (prosecution motivated by impermissible reason)
For discovery: Must make “credible showing” of both elements (only “slightly lower” than standard for dismissal)
For dismissal: Must prove both elements with “clear evidence”
The standards are intentionally very demanding because of separation of powers concerns.
Novel Legal Discovery: The “Burn Bags”
The government response includes fascinating new factual details about the investigation that led to charges:
In spring 2025, FBI investigators found an unused classified storage room (Room 9582) at FBI headquarters containing:
– Hundreds of pages of classified documents in burn bags on the floor
– Documents related to “Crossfire Hurricane” (the Trump-Russia investigation)
– A locked safe containing handwritten notes by Comey that were previously unknown to investigators
Access logs showed the room was rarely used until late December 2024, with a spike of activity over inauguration weekend (January 19-22, 2025).
The handwritten notes are significant: During his September 2020 testimony, Comey said he didn’t remember being briefed about Hillary Clinton approving a plan concerning Trump and Russian hackers. But Comey’s notes from September 26, 2016 read: “HRC plan to tie Trump.”
This discovery suggests the investigation wasn’t just about retaliation but uncovered new evidence of potentially false testimony.
Analysis: Who Has the Better Arguments?
This is an exceptionally close case that raises profound questions about executive power, prosecutorial independence, and the rule of law.
Comey’s Strongest Points:
- The September 20 post is remarkable: Trump’s direct public appeal to his Attorney General to prosecute Comey, followed immediately by Siebert’s departure and Halligan’s appointment, is highly unusual and suspicious.
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The pattern is compelling: Years of attacks, threats to use the IRS against Comey, removing prosecutors who won’t indict, installing a political loyalist with no prosecutorial experience, rushing to beat the statute of limitations – the totality is troubling.
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The comparators argument has force: If Sessions, Pruitt, Price, and Mnuchin weren’t prosecuted for allegedly false statements to Congress, why is Comey? The government’s distinction (pre-confirmation vs. post-confirmation conduct) may not hold up.
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Trump’s celebration after indictment: Trump’s post calling Comey “one of the worst human beings” and specifically thanking Halligan and Patel undercuts the claim he wasn’t involved.
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Career prosecutors repeatedly declined: When multiple career prosecutors say there’s insufficient evidence, but then a political appointee indicts days before the deadline, it raises serious questions.
Government’s Strongest Points:
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The separation between Trump and Halligan: Courts have been very reluctant to impute one person’s animus to the actual prosecutor. Comey provides no evidence of Halligan’s improper motive.
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Trump’s consistent position on Comey’s crimes: Trump has been saying since 2017 that Comey leaked and lied. This isn’t new retaliation for recent criticism.
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The timeline cuts against retaliation: Trump accused Comey of crimes before Comey became a vocal Trump critic in 2018.
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The comparators really aren’t the same: Lying about official conduct as an agency head is categorically more serious than statements about pre-government conduct. The government’s examples of past prosecutions (Haldeman, Weinberger, etc.) are persuasive.
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The evidence appears strong: The emails between Comey and Richman are damaging. They show coordination with media, anonymous sourcing, and Comey apparently coaching what Richman should tell reporters.
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New handwritten notes: The discovery of Comey’s previously unknown notes that contradict his 2020 testimony suggests there may be legitimate grounds for prosecution independent of any political motivation.
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The legal standards are very demanding: Comey must show not just that Trump wanted him prosecuted, but that the actual prosecutor acted with improper motive and that similarly situated people weren’t prosecuted. That’s a heavy lift.
The Critical Question:
The case ultimately turns on whether Trump’s involvement in the prosecutorial decision (if proven) is sufficient to taint it, even if the formal decision-maker (Halligan) may have acted independently.
Courts have established a strong presumption that prosecutors act properly. But they’ve also recognized that when that presumption is rebutted by clear evidence of political interference, the Constitution requires dismissal.
Prediction: Who Will Likely Prevail?
Likely outcome: The motion to dismiss will be denied, but the case presents serious issues that could succeed on appeal.
Why the motion will likely be denied at the trial court level:
- The legal standard is very demanding: Comey must show “direct evidence” of improper motive by the actual prosecutor, not just Trump. That’s a high bar.
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Courts are reluctant to second-guess prosecutorial decisions: The separation of powers doctrine strongly favors letting the Executive Branch decide whom to prosecute.
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The government’s comparator distinction is legitimate: High-level officials lying about official conduct really is different from confirmation hearing statements.
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There is evidence of actual wrongdoing: The emails with Richman and the newly discovered handwritten notes provide a legitimate basis for prosecution.
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Trump’s denial that he ordered prosecution: While you might be skeptical, his public statement that DOJ officials made the decision provides cover.
Why Comey has a chance on appeal:
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The totality of circumstances is extraordinary: This case may be unique in the combination of: public presidential pressure, removal of resistant prosecutors, appointment of inexperienced political loyalist, rushed timeline, and presidential celebration.
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The September 20 post could be seen as “direct evidence”: An appellate court might view Trump’s public demand for prosecution, followed immediately by the appointment and indictment, as sufficient proof of tainted process.
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Courts have never seen a fact pattern quite like this: The brazeness of Trump’s public involvement may shock the conscience in a way that overcomes the normal presumptions.
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The appearance of justice matters: Even if the case is technically legitimate, courts may conclude that the appearance of political prosecution is so corrupting that dismissal is required to preserve institutional integrity.
The Wild Card: Discovery
If the judge denies the motion to dismiss but grants discovery into prosecutorial decision-making, what’s revealed could change everything. If there are emails showing:
– Trump directly ordering the prosecution
– Political considerations in the charging decision
– Halligan coordinating with the White House
– Prosecutors being overruled for political reasons
Then dismissal becomes much more likely.
Conversely, if discovery shows Halligan conducted an independent review and concluded the evidence warranted charges, the case gets stronger.
Broader Implications
This case raises profound questions that extend far beyond Comey’s individual prosecution:
- Can a President use prosecutorial power against critics? If Trump can successfully prosecute Comey for conduct multiple career prosecutors deemed insufficient, does that chill criticism of the President?
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What is the line between legitimate prosecution and abuse of power? If a crime was committed, can the President’s political motivations taint an otherwise valid prosecution?
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How much independence must prosecutors have? Should prosecutors be able to resist presidential pressure? What happens when they can’t?
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Does the rule of law apply equally? If comparable Trump officials weren’t prosecuted but Comey was, does that erode the principle of equal justice?
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What remedies exist for political prosecutions? If dismissal is the only remedy, but courts are reluctant to dismiss, are we left with no check on politically motivated charges?
These questions don’t have easy answers, and reasonable people can disagree based on their views of executive power, prosecutorial independence, and the specific facts here.
Conclusion
This is a genuinely difficult case that will likely turn on:
- Whether the judge credits Trump’s involvement as determinative or focuses on Halligan’s formal authority
- Whether the comparators are truly “similarly situated”
- Whether the evidence of actual wrongdoing (the emails, the notes) is sufficient to justify prosecution regardless of Trump’s involvement
- What additional facts might emerge through discovery
Comey faces an uphill battle given the demanding legal standards, but he has made a stronger showing than most defendants who raise these claims. The September 20 Truth Social post and the rushed timeline are genuinely extraordinary facts that may overcome the normal presumptions.
If forced to predict, I’d say:
– 60% chance the motion to dismiss is denied
– 30% chance discovery is granted, which could change the landscape
– 10% chance outright dismissal
But if this case goes to trial and Comey is convicted, his chances on appeal of getting the conviction overturned on vindictive/selective prosecution grounds may actually be better than his chances now, because he’ll have a full record of how the prosecution was conducted and any additional evidence of political interference that emerges during trial.
The ultimate irony: Comey, who was fired for his handling of the FBI’s investigation into Trump, may now become the test case for whether a President can use prosecutorial power against political enemies – the very thing Comey warned about when Trump first took office.