Donald Trump’s own words could doom the criminal case against James Comey, legal experts say

By Devan Cole, CNN

(CNN) — As President Donald Trump publicly pressures the Justice Department to bring criminal cases against his perceived enemies, legal experts say former FBI Director James Comey could attempt a rarely successful legal maneuver that allows judges to throw out charges that were unfairly brought.

Requests to dismiss cases based on selective or vindictive prosecutions face extremely high hurdles in court and are overwhelmingly unsuccessful. Trump himself and Hunter Biden both tried (and failed) to employ the tactic in recent years.

But after Trump publicly called on Attorney General Pam Bondi to move more aggressively in her department’s pursuit of Comey and others, the former FBI director might have the facts needed to convince a judge to throw out the charges brought against him on Thursday.

“It’s a better case for Comey, because the president won’t shut up,” said 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 lying to Congress during testimony he gave in 2020. The alleged false statements concern his claim at the time that he didn’t authorize leaks to the press when he was at the helm of the bureau as it oversaw politically sensitive investigations.

Trump in recent days has urged prosecutors within the Justice Department to move more aggressively in their pursuit of not only Comey, but also 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 also advocating for a charge against former Trump national security adviser John Bolton, a noted critic of the president.

“It’s clearly vindictive. It’s clearly his enemies list,” former federal Judge Shira Scheindlin told CNN.

Trump told reporters on Friday that he expects other political opponents to be prosecuted following Comey’s indictment.

“It’s not a list, but I think there will be others,” he told CNN’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 looking to convince judges to drop their cases based on claims of being unfairly prosecuted face a range of obstacles, legal experts said.

But it’s possible that judges could be more open to such bids during Trump’s second term as the president pushes harder – and more publicly – to tear down the decades-long tradition 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,” said Scheindlin, who was appointed to a federal court in New York by former President Bill Clinton.

The strategy is already being tested in other politically fraught criminal cases brought in recent months by the Trump administration.

Kilmar Abrego Garcia, the Maryland man unlawfully deported to El Salvador earlier this year and later brought back to the US to face criminal charges in Tennessee, has asked the judge overseeing his case to drop the human smuggling charges brought against him because, 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 brought against her earlier this year stemming from a scuffle she had with federal agents at an Immigration and Customs Enforcement detention facility in her home state.

Comey’s attorney, Patrick Fitzgerald, said in a statement that his client denies the charges brought against him and that they “look forward to vindicating him in the courtroom.”

Comey is expected to be arraigned on October 9.

Prosecutorial discretion

Requests by defendants for cases to be tossed out based on their claim that they’re being selectively prosecuted are typically legal losers because of the broad discretion prosecutors have in making charging decisions.

Defendants need to be able to show that the charges they’re facing haven’t ordinarily been brought against a similarly situated individual whose actions could have resulted in the same case and that they’re being pursued on a discriminatory basis – that is, because the government has singled them out based on something like their race, religion or political views.

But a range of reasons undergird prosecutors’ decision on whether to file charges, and the strength of evidence plays a major role in that process.

“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,” said Randall Eliason, a former federal prosecutor in Washington, DC, who served under 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 though Comey could push the selective prosecution argument, Scheindlin explained that his lawyers might in the end want to avoid 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 said. “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.’”

‘You see the animus’

An effort by Comey to get the judge to toss the case based on a claim that he’s being vindictively prosecuted, on the other hand, may be less of a longshot, according to experts CNN spoke with.

Such bids are usually grounded in a defendant’s assertion that the government is retaliating against them for exercising certain rights. For example, someone might raise a vindictive prosecution request if prosecutors bring additional charges against them after the individual rejected a plea deal, choosing instead to take their case to trial.

Trump has long been vocal about his grievances toward Comey, whom he blames for opening the Russian 2016 election interference investigation that hung over much of the president’s first term. After Comey was fired by Trump in 2017, he went on to become a staunch critic of his onetime boss.

Even after Comey was indicted on Thursday, Trump continued his criticism of him last week by calling him “sick” and “corrupt.”

“You see the animus,” said Jones, who was appointed to a federal court 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.’”

A pattern of prosecutors departing

Trump’s statements targeting Comey and others represent only part of the evidence they could lean on if they press judges to throw out charges brought against them. The other facts already on full display concern the recent turmoil within the office that is prosecuting Comey’s case.

As pressure mounted on Erik Siebert, the US attorney in the Eastern District of Virginia, to bring charges against James, the prosecutor was pushed out and later replaced on an interim basis 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,” said 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 shown up in court: Abrego Garcia’s attorneys pointed to them last Monday as they renewed their push for the judge overseeing his case to throw out the charges he’s facing.

The Justice Department’s desire to pursue human smuggling charges against Abrego Garcia had caused some disagreement among prosecutors in Nashville US attorney’s office, sources told CNN, and his attorneys invoked the Virginia drama in an attempt to make clear that his situation 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.”

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