Justice Department defends Lindsey Halligan and Trump’s social media posts targeting James Comey

By Hannah Rabinowitz, Katelyn Polantz, Devan Cole, Kara Scannell, CNN

(CNN) — President Donald Trump’s personal vendetta against James Comey did not lead to his indictment, the Justice Department said in a court filing Monday, urging a judge not to throw out the charges against the former FBI director over Trump’s extraordinary social media post calling for his prosecution.

The claim arose as prosecutors try to undermine Comey’s key defense — that he is being “singled out” for prosecution because he has criticized Trump — and dive further into battle between the Justice Department and Comey over whether the former FBI director was prosecuted simply because he is one of the president’s longtime foes.

“The defendant spins a tale that requires leaps of logic and a big dose of cynicism, then he calls the President’s post a direct admission,” prosecutors wrote.

“None of the President’s social-media posts express a desire for the defendant to be penalized for exercising his First Amendment rights. Far from it,” they continued. “The President’s social-media posts are clear on why he thinks the defendant should be prosecuted: he thinks the defendant is ‘guilty as hell.’”

The crux of Comey’s argument is that Trump has made no secret of his vitriol for him during the president’s yearlong vendetta against the FBI for its investigation into Russia and his 2016 presidential campaign. Trump has focused his animosity on Comey, his attorneys argued, citing an extraordinary list of public statements in which Trump called him a liar and suggested he should be investigated and prosecuted.

But the “smoking-gun evidence,” defense attorneys said, was Trump’s social media post days before an indictment was handed up declaring Comey was “guilty as hell” and demanding of the Attorney General that “JUSTICE MUST BE SERVED, NOW!!!”

Prosecutors rebuffed the argument, saying that Trump has long showed his belief that Comey should be criminally charged. In fact, they said, Trump had accused Comey of committing a crime even before the former director began publicly criticizing him.

While Trump’s repeated posts suggest he “disfavors” Comey, prosecutors said, many of them also show that Trump believed Comey “leaked information” and “lie[d] under oath” – the same allegations that comprise the case against him. Therefore, they argued, it would take “contrived reading” of those posts to conclude Trump wanted Comey charged because of his criticism of the administration.

Comey has pleaded not guilty to charges of giving false statements and obstruction of a congressional proceeding

DOJ defends Halligan’s appointment

The Justice Department in a separate Monday filing defended the legitimacy of the prosecutor who Comey’s indictment, as well as the indictment of New York Attorney General Letitia James. The department argued the Interim US Attorney for Northern Virginia, Lindsey Halligan, is lawfully serving in a role she was appointed to.

A federal judge is weighing bids by Comey and James to have their charges thrown out based on their claim that Halligan, who convinced federal grand juries to approve the charges against Comey and James, is not lawfully serving in the position.

Halligan was tapped for the post after Trump pushed out the former interim US attorney, Erik Siebert. Both Comey and James claim Siebert had already served the legally allotted maximum of 120 days that someone can serve on a temporary basis before needing to be confirmed by the Senate and that Halligan’s appointment after those 120 days had passed means that Trump was not legally able to appoint a new interim attorney and avoid the Senate confirmation process.

But in court papers submitted Monday, the Justice Department pushed back strongly on those assertions and told US District Judge Cameron McGowan Currie that even if she were to conclude Halligan is not lawfully serving in her role, the two indictments should not be tossed out altogether.

“Even were Ms. Halligan’s appointment invalid, the motions to dismiss should be denied. While Defendants challenge Ms. Halligan’s appointment as interim US Attorney, the actions they challenge do not hinge on her validly holding that particular office,” the Justice Department wrote.

The government attorneys argue that federal law does not bar the attorney general from appointing a new interim US attorney after 120 days “if a new vacancy arises.”

“The Attorney General must revisit her interim appointments every 120 days. They do not automatically renew,” they wrote. “At the same time, Congress did not hamstring the Attorney General with an artificial, one-time-only appointment window.”

Currie is set to hear arguments over Halligan’s authority next week. Three other judges around the country have concluded that a trio of Trump’s choices for US attorney in other districts are serving unlawfully.

Should James and Comey succeed in persuading the judge that Halligan was unlawfully appointed, it could doom both cases since Halligan was the only prosecutor to sign the indictments.

DOJ defends Letitia James subpoena

In a separate filing, the Justice Department on Monday defended its subpoenas to James, the New York attorney general, seeking records relating to civil investigations into the Trump Organization and National Rifle Association.

James had moved to quash the subpoenas, which were issued in August, saying they are overly broad, infringe on state rights, and are invalid because they are signed by John Sarcone, the US attorney for the Northern District of New York, who they say is serving unlawfully.

The Justice Department in its filing, which was unsealed on Monday, said that motion should be denied.

“Acting United States Attorney John A. Sarcone III’s status in that role is irrelevant. The grand jury can issue subpoenas, and AUSAs and special attorneys (like Mr. Sarcone) can conduct grand jury investigations, regardless of the status of the United States Attorney. In any event, Mr. Sarcone is validly serving as Acting United States Attorney for the Northern District of New York,” prosecutors wrote.

In support of its position, DOJ also points to a New York State appellate judge’s dissenting opinion in the civil fraud case. Trump did not raise the issue of selective prosecution in his appeal of the civil fraud case. But the judge wrote that James brought the lawsuit “out of partisan political motives.”

James’ lawyers have said the investigation was launched after Trump’s former attorney Michael Cohen testified before Congress alleging values for properties were manipulated.

DOJ also wrote that the subpoena was sent to the office of the attorney general “no individual, including Attorney General James, have been identified as targets of the investigation.”

James has pleaded not guilty to charges related to an investigation into alleged mortgage fraud.

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