James Comey will appear before a federal judge in Virginia on Wednesday as his attorneys argue that the former FBI director is facing a “selective and vindictive” prosecution by the Trump administration, a key hearing that could determine the future of the case.
Comey was charged in September with making a false statement to Congress and obstructing a congressional proceeding, days after President Donald Trump publicly urged Attorney General Pam Bondi to prosecute Comey and others. Comey pleaded not guilty to the charges.
Comey’s lawyers believe the Trump administration has singled out their client because of his protected speech and what they call Trump’s “personal animus” toward Comey. Trump fired Comey as FBI director in 2017 after the two clashed over the Justice Department’s investigation into the Trump campaign’s ties to Russia. Comey had been an outspoken critic of Trump since then.
“The Constitution forbids the government from prosecuting an individual based on his protected speech or based on a government official’s animus toward the individual,” attorneys for Comey wrote in filings. “Objective evidence establishes that President Trump directed the prosecution of Mr. Comey in retaliation for Mr. Comey’s public criticisms and to punish Mr. Comey because of personal spite.”
Comey’s team has provided the court with pages of examples of Trump’s disparaging posts and comments about the former FBI director. The posts are likely to play a role in Wednesday’s hearing, especially Trump’s message to Bondi. Legal experts told NBC News in September that Trump’s post could backfire.
Comey’s lawyers want U.S. District Judge Michael Nachmanoff to dismiss the case with prejudice, meaning the case cannot be brought for a second time. These types of motions rarely succeed in court, but legal experts say if there was ever a situation where it would succeed, this case may be the one.
Patrick J. Cotter, a former federal prosecutor who is now a partner at UB Greensfelder, told NBC News the evidence supporting Comey’s effort is incredibly strong, despite the high bar for such motions.
“This is that rarest of all beasts. This is actually a vindictive prosecution,” Cotter said. “If there is ever going to be a vindictive prosecution motion that is successful, it will be this motion.”
Cotter pointed to the evidence that Trump ordered the attorney general to indict Comey and others, and his long-standing animus toward the former FBI director.
The Trump administration argues the charges against Comey are legitimate.
“The societal interests in this prosecution are readily apparent and overwhelming. The defendant is a former FBI Director who lied to Congress about his conduct while at the helm of the Nation’s primary federal law-enforcement agency. His prosecution implicates societal interests of the highest order,” DOJ wrote in a filing.
Comey, it says, “asks the Court to take the extraordinary step of dismissing his indictment because — he says — he is being vindictively and selectively prosecuted. Given the deep-seated separation-of-powers principles at stake, his request can be granted only if “the Constitution requires it.”
Comey and New York Attorney General Letitia James, whom the Trump administration indicted in October, separately filed motions to disqualify acting U.S. Attorney Lindsey Halligan from her post on the grounds that her appointment was unlawful.
Trump named Halligan, a former Trump personal lawyer with no prior experience as a prosecutor, after her predecessor resigned under pressure to indict Comey and James.
A separate judge, Magistrate Judge William Fitzpatrick, earlier this month accused the DOJ of taking a “indict first, investigate later” approach to Comey’s case.
Ryan J. Reilly contributed.