As President Donald Trump publicly pressures the Justice Department to convey criminal circumstances against his perceived enemies, legal experts say former FBI Director James Comey could try a not often profitable legal maneuver that permits judges to throw out costs that had been unfairly introduced.
Requests to dismiss circumstances based mostly on selective or vindictive prosecutions face extraordinarily excessive hurdles in court docket and are overwhelmingly unsuccessful. Trump himself and Hunter Biden each tried (and failed) to make use of the tactic in recent times.
But after Trump publicly referred to as on Attorney General Pam Bondi to maneuver extra aggressively in her division’s pursuit of Comey and others, the former FBI director might need the info wanted to persuade a choose to throw out the charges brought against him on Thursday.
“It’s a better case for Comey, because the president won’t shut up,” stated retired federal Judge John Jones. “And that’s admissible, so he’s got a fighting chance, I think, on vindictive prosecution.”
Comey was charged with two felony counts for allegedly mendacity to Congress throughout testimony he gave in 2020. The alleged false statements concern his declare at the time that he didn’t authorize leaks to the press when he was at the helm of the bureau because it oversaw politically delicate investigations.
Trump in current days has urged prosecutors inside the Justice Department to maneuver extra aggressively of their pursuit of not solely Comey, but additionally New York Attorney General Letitia James, a Democrat, and California Democratic Sen. Adam Schiff, all of whom he considers political foes. Senior DOJ leaders are additionally advocating for a charge against former Trump nationwide safety adviser John Bolton, a famous critic of the president.
“It’s clearly vindictive. It’s clearly his enemies list,” former federal Judge Shira Scheindlin advised NCS.
Trump advised reporters on Friday that he expects different political opponents to be prosecuted following Comey’s indictment.
“It’s not a list, but I think there will be others,” he advised NCS’s Kevin Liptak as he left the White House. “I mean, they’re corrupt. These were corrupt, radical left Democrats. … No, there will be others.”
Criminal defendants seeking to persuade judges to drop their circumstances based mostly on claims of being unfairly prosecuted face a spread of obstacles, legal experts stated.
But it’s potential that judges could be extra open to such bids throughout Trump’s second time period as the president pushes more durable – and extra publicly – to tear down the decades-long custom of independence the Justice Department has had from political interference to criminally pursue his foes.
“He’s made it so obvious that he’s targeting them, regardless of the evidence, that I do think a judge would be far more receptive to probably both concepts, selective prosecution and vindictive,” stated Scheindlin, who was appointed to a federal court docket in New York by former President Bill Clinton.
‘Never capable of get me’: See what Comey advised NCS again in May about Trump
The technique is already being examined in different politically fraught criminal circumstances introduced in current months by the Trump administration.
Kilmar Abrego Garcia, the Maryland man unlawfully deported to El Salvador earlier this yr and later introduced again to the US to face criminal costs in Tennessee, has requested the choose overseeing his case to drop the human smuggling costs introduced against him as a result of, he argues, he’s being unfairly prosecuted for challenging his removal.
And New Jersey Democratic Rep. LaMonica McIver has mounted the legal gambit in a case introduced against her earlier this yr stemming from a scuffle she had with federal brokers at an Immigration and Customs Enforcement detention facility in her house state.
Comey’s legal professional, Patrick Fitzgerald, stated in a press release that his consumer denies the costs introduced against him and that they “look forward to vindicating him in the courtroom.”
Comey is expected to be arraigned on October 9.
Requests by defendants for circumstances to be tossed out based mostly on their declare that they’re being selectively prosecuted are usually legal losers due to the broad discretion prosecutors have in making charging choices.
Defendants want to have the ability to present that the costs they’re going through haven’t ordinarily been introduced against a equally located particular person whose actions could have resulted in the identical case and that they’re being pursued on a discriminatory foundation – that’s, as a result of the authorities has singled them out based mostly on one thing like their race, faith or political opinions.
But a spread of causes undergird prosecutors’ choice on whether or not to file costs, and the energy of proof performs a significant position in that course of.
“It is a very hard motion to win because prosecutors are given a great deal of discretion in deciding what kind of cases to bring and which cases to bring,” stated Randall Eliason, a former federal prosecutor in Washington, DC, who served below Republican and Democratic presidents.
He continued: “You’ve really got to prove bad motives on the part of the prosecution – that they’re really coming at you for some completely improper reason.”
Even although Comey could push the selective prosecution argument, Scheindlin defined that his legal professionals may in the finish wish to keep away from doing so.
“That’s like admitting that yeah, you did it, but how come the other ten guys who did it aren’t being charged?” she stated. “So a defense lawyer for somebody as high-profile as Comey I don’t think is going to want to make that argument that, ‘Well, I might have lied, but everybody else lies, too.’”
An effort by Comey to get the choose to toss the case based mostly on a declare that he’s being vindictively prosecuted, on the different hand, could also be much less of a longshot, in response to experts NCS spoke with.
Such bids are often grounded in a defendant’s assertion that the authorities is retaliating against them for exercising sure rights. For instance, somebody may elevate a vindictive prosecution request if prosecutors convey further costs against them after the particular person rejected a plea deal, selecting as an alternative to take their case to trial.
Trump has lengthy been vocal about his grievances towards Comey, whom he blames for opening the Russian 2016 election interference investigation that hung over a lot of the president’s first time period. After Comey was fired by Trump in 2017, he went on to turn out to be a staunch critic of his onetime boss.
Even after Comey was indicted on Thursday, Trump continued his criticism of him final week by calling him “sick” and “corrupt.”
“You see the animus,” stated Jones, who was appointed to a federal court docket in Pennsylvania by former President George W. Bush. “What else do you need? It’s a great test case to kind of examine the contours of a true vindictive prosecution claim – you know, ‘I got indicted because the president United States doesn’t like me and wanted me to be indicted.’”
Trump’s statements concentrating on Comey and others characterize solely a part of the proof they could lean on in the event that they press judges to throw out costs introduced against them. The different info already on full show concern the current turmoil inside the workplace that’s prosecuting Comey’s case.
As strain mounted on Erik Siebert, the US legal professional in the Eastern District of Virginia, to convey costs against James, the prosecutor was pushed out and later changed on an interim foundation by Trump loyalist Lindsey Halligan.
“They’re picking their guy and then trying to find something they can charge him with, versus investigating these facts on the law and deciding whether charges are appropriate,” stated Eliason. “The whole flip flop thing and picking a new US attorney who will do what the former US attorney won’t, I mean, that sets off all kinds of red flags.”
Those personnel developments have already proven up in court docket: Abrego Garcia’s attorneys pointed to them final Monday as they renewed their push for the choose overseeing his case to throw out the costs he’s going through.
The Justice Department’s want to pursue human smuggling costs against Abrego Garcia had brought on some disagreement amongst prosecutors in Nashville US legal professional’s workplace, sources advised NCS, and his attorneys invoked the Virginia drama in an try to clarify that his scenario doesn’t exist in a vacuum.
“This is hardly the only time the president has sought to use DOJ to get revenge: The U.S. Attorney in the Eastern District of Virginia was forced from office for not vindictively charging New York Attorney General Letitia James,” they wrote. “In our case, the chief of the Criminal Division resigned rather than bring this vindictive prosecution himself.”