Former FBI Director James Comey is preparing a variety of legal strategies ahead of his trial scheduled for January, from challenging his top prosecutor’s appointment to claiming he is being prosecuted in a retaliatory manner.
Former FBI Director James Comey pleads not guilty to lying to Congress
Former FBI Director James Comey has pleaded not guilty to charges of lying to Congress and obstructing Congress in Alexandria, Virginia.
A series of legal motions aimed at dismissing the charges against former FBI Director James Comey may soon be filed by his lawyers. Comey pleaded not guilty on October 8 in federal court in Virginia to the charges pushed by President Donald Trump.
One of Comey’s lawyers, former Justice Department official Patrick Fitzgerald, announced at trial that Comey’s team plans to challenge the indictment on several different grounds. These include allegations that the prosecutor who secured the indictment was not duly appointed, that the prosecution was selective and vindictive, that the grand jury process was abusive, and that the government acted outrageously.
Mr Fitzgerald told the court: “I hope a trial can be avoided.”
Justice Department spokesman Chad Gilmartin declined to comment on Comey’s legal strategy or the department’s future prospects.
On September 25, a federal grand jury indicted Comey on charges of lying to Congress and obstructing the proceedings of Congress. The charges relate to Comey’s testimony before the Senate Judiciary Committee on September 30, 2020.
According to the indictment, Comey falsely testified on the same day that he did not authorize anyone at the FBI to anonymously divulge information about the investigation to the media. The names of the alleged anonymous source and the persons being investigated are not named in the indictment. Fitzgerald said at the Oct. 8 hearing that he and Comey still don’t know who they are.
Here are the arguments Comey’s lawyers say they plan to make and when a trial could take place.
Was President Trump’s appointment of prosecutor Lindsey Harrigan effective?
Mr. Fitzgerald said on October 8 that the defense plans to argue that the appointment of Mr. Trump’s former personal lawyer, Lindsey Harrigan, to oversee the investigation was invalid. Harrigan had never been a prosecutor before and was the only prosecutor to sign the indictment.
Two former Justice Department officials, Ed Whelan and Liz Oyer, told USA TODAY they believe Fitzgerald is probably right. Mr. Whelan held senior positions in the General Counsel’s Office during the George W. Bush administration. Mr. Oyer served as the United States’ pardon attorney during the Biden administration and during the first months of President Trump’s current term. She was fired for opposing actor Mel Gibson’s demands to restore gun rights.
Harrigan was appointed to replace Eric Siebert, who was previously appointed by President Trump as interim U.S. attorney for the Eastern District of Virginia. Whelan said the Justice Department cannot legally appoint a second interim U.S. attorney after appointing the first, whose term has expired. He pointed to a federal law that allows local district courts to appoint U.S. attorneys after the interim U.S. attorney’s 120-day term expires.
In Mr. Siebert’s case, his term expired on or about May 21, 120 days after his appointment on January 21. He was subsequently appointed by the judiciary to continue serving.
In a 1986 memo, Samuel Alito, then a lawyer in the Reagan administration’s Office of General Counsel and now a Supreme Court justice, wrote that “Congress appears to have intended the Attorney General to be authorized to make only one interim appointment; subsequent interim appointments would have to be made by the district courts.”
Oyer said that if Harrigan’s appointment was not legal, the indictment would likely be invalid “because she was the only person who signed the indictment.”
Not everyone agrees with Whelan and Oyer’s analysis. Former Justice Department official Trent McCotter wrote in X that the attorney general can appoint new U.S. attorneys even after they have been appointed. Otherwise, “after 120 days, the AG’s appointment authority literally would not reset,” McCotter said.
Mr. Whelan and other legal experts said the Trump administration may have appointed Mr. Harrigan to be an “acting” federal prosecutor rather than an interim federal prosecutor. But the administration has never said so, and Justice Department spokesman Gilmartin has not commented.
Is this case a selective or retaliatory prosecution?
Fitzgerald also said the defense plans to argue that the case against Comey amounts to selective or retaliatory prosecution. These are separate but related grounds for disposing of a case.
“Selective prosecution,” as explained by Lawfare, a nonprofit organization that provides analysis of legal issues, refers to criminal cases pursued based on the defendant’s protected characteristics or activities, rather than the alleged criminal act. A “conviction” is a legal action taken to punish a defendant for exercising his legal rights.
It is not easy for the defendant to win this type of argument. Courts generally assume that administrative officials have performed their duties properly, and the burden is on defendants to prove otherwise.
Both Trump and Hunter Biden have lost challenges to federal criminal cases they faced in recent years, citing selective and retaliatory prosecution.
Still, Comey’s lawyers hope that Trump’s social media posts calling for and later celebrating Comey’s indictment, as well as evidence that Trump replaced the top prosecutor with his former personal lawyer to push for an indictment, will help them overcome that hurdle.
In at least one recent case, an indictment by U.S. Judge Kilmer Abrego Garcia, Waverly D. Crenshaw Jr., concluded on Oct. 3 that there was a “realistic possibility of revenge.” Abrego-Garcia’s legal troubles made headlines after the Trump administration mistakenly deported him to El Salvador. Abrego-Garcia was extradited to the United States, where she was indicted on human trafficking charges by a federal grand jury.
Crenshaw ordered the government to turn over evidence to Abrego-Garcia’s defense team ahead of a hearing on the matter.
Was there abuse during the grand jury process?
Mr. Fitzgerald said his defense team also plans to argue that there was abuse during the grand jury process that led to Mr. Comey’s indictment.
Fitzgerald did not specify exactly what that discussion would look like, but there are various theories about how abuse could occur. For example, a prosecutor may violate a defendant’s constitutional right to due process by intentionally providing false testimony.
Did law enforcement commit an “outrageous act”?
Fitzgerald also said the defense plans to challenge the case based on claims that the government has engaged in “outrageous conduct.” That would mean the government did something or things so outrageous that it violated Mr. Comey’s constitutional due process rights. These rights are designed to ensure that defendants are treated fairly when the government seeks to deprive them of life, liberty, or property.
Courts may conclude that government action is outrageous when police brutalize the defendant or government agents entrap the defendant. For example, in 2014, California Federal Judge Otis D. Wright II dismissed criminal drug and robbery charges for outrageous conduct, concluding that the government had “extensive involvement,” including undercover agents, in “designing” the crime plan.
Charges of outrageous conduct can be brought in a variety of situations. In a 1973 decision, the Supreme Court held that due process violations include conduct that “shocks the universal sense of justice.”
Trial in January?
After Fitzgerald announced on Oct. 8 that his defense would object to the charges, Judge Michael Nakhanov scheduled a two-day hearing for Nov. 19 and Dec. 9 for both sides to hear oral arguments.
Nakhamanov has stated multiple times that he wants to continue the process and stick to the speedy trial schedule as closely as possible. After Fitzgerald proposed a trial date of Jan. 12, Nakhanov suggested Jan. 5, which the defense and prosecution said was valid.
Mr. Nakhanov also directed prosecutors to ensure that the defense has access to confidential information so that they can review the material that prosecutors say they will use in the case. Mr. Comey and Mr. Fitzgerald previously had access to top secret classified information, but Mr. Fitzgerald said he relinquished that authority when he left the administration. Nakhanov has repeatedly instructed prosecutors to work with the defense and begin sharing evidence in the case.
If the case goes to trial, both sides said they do not expect the trial to last more than three days.
“We think this is a simple case,” Fitzgerald said.
