Comey Alleges Vindictive Prosecution, Illegal Appointment in Motions to Dismiss

Former FBI Director James Comey is asking a federal judge to dismiss the Justice Department’s indictment of him, based on the idea that the Trump administration brought a vindictive and selective prosecution, along with using an illegally appointed prosecutor.

Two motions filed on Oct. 20 showed Comey and his attorneys alleging that Trump reached for a case against one of his political foes after multiple investigations, and the motions stated that prosecutors previouly said there wasn’t enough evidence.

In allegedly doing so, Comey argued, the Trump administration violated multiple aspects of the Constitution, including the Due Process and Appointments Clauses.

“The proper remedy for this unconstitutional prosecution is dismissal with prejudice,” Comey and his attorneys said.

Comey was indicted on two counts—making a false statement to Congress and obstruction in a criminal case—with the potential for time in prison.

The Justice Department declined to comment when contacted by The Epoch Times.

In announcing the indictment on Sept. 25, U.S. Attorney for the Eastern District of Virginia, Lindsey Halligan, said that “the charges as alleged in this case represent a breach of the public trust at an extraordinary level.”

“The balance of power is a bedrock principle of our democracy, and it relies upon accountability and a forthright presentation of facts from executive leadership to congressional oversight,” she added.

“Any intent to avoid, evade, prevent, or obstruct compliance is a violation of professional responsibility and, most importantly, the law.”

Comey’s two motions focused on President Donald Trump’s posts to Truth Social—particularly one where he appeared to express frustration to Attorney General Pam Bondi.

“Pam: I have reviewed over 30 statements and posts saying that, essentially, ‘same old story as last time, all talk, no action. Nothing is being done. What about Comey, [U.S. Sen.] Adam ‘Shifty’ Schiff, [New York Attorney General] Leticia [James]??? They’re all guilty as hell, but nothing is going to be done,'” Trump said in a post on Sept. 20.

“JUSTICE MUST BE SERVED, NOW!!!”

The president’s post came shortly after former Interim U.S. Attorney Erik Siebert departed the U.S. Attorney’s Office for the Eastern District of Virginia.

Less than two days later, Bondi appointed Halligan, a White House adviser, to serve in Siebert’s place. Comey was charged with an indictment that Halligan signed on Sept. 25.

“President Trump’s … 11th-hour appointment of a political ally for the express purpose of prosecuting a longtime critic, accompanied by a social media post pushing the DOJ to indict—is decisive evidence that the government would not have prosecuted Mr. Comey but for his ‘expression of ideas’ that President Trump disliked,” one of Comey’s motions read.

“That sequence of public events provides more than enough evidence for this court to conclude that President Trump’s animus was the but-for cause of the government’s decision to prosecute Mr. Comey.”

Comey’s indictment focused on Comey’s allegedly false testimony before the Senate Judiciary Committee in September 2020.

Sen. Ted Cruz (R-Texas) had asked Comey about prior committee testimony he offered in 2017 to then-Senate Judiciary Chairman Chuck Grassley (R-Iowa).

Comey alleged on Oct. 20 that the indictment misrepresented his answer to Cruz and was therefore flawed.

Halligan’s appointment, Comey said, was invalid because it violated a statutory time limit for appointing a new prosecutor.

Bondi had invoked 28 U.S.C. Section 546 when she appointed Halligan. That law generally allows the attorney general to fill vacant U.S. attorney positions and allows them to remain in that position for 120 days or until one has been confirmed by the Senate.

It adds that when the 120 days elapse, the district court for that particular district can appoint a U.S. attorney to fill the vacancy.

In court filings, Comey said that Siebert had already been named and 120 days had elapsed since his appointment.

“Instead of awaiting the district court’s selection, the Attorney General purported to appoint Ms. Halligan—even though the 120-day period ‘after appointment by the Attorney General under this section’ had long since expired,” his motion read, quoting the statute.

It added that the administration failed to follow the Appointments Clause of the Constitution by not obtaining some kind of participation or confirmation from Congress.

Joseph Lord contributed to this report.