General Discussion

If the Trump administration’s prosecution of James Comey isn’t “selective” and “vindictive,” then those words have lost all meaning. But in the law, those words carry technical implications beyond their straightforward dictionary definitions and commonsense usages. So it’s worth keeping in mind that Comey’s case won’t automatically be dismissed on those grounds if his lawyers raise them, even if they do manage ultimately to get the case tossed.

Defense motions to dismiss for selective and vindictive prosecution are difficult to win, as President Donald Trump himself learned when he lost such a motion in one of his federal criminal cases — which he nonetheless got dismissed by winning the 2024 election. But he and the Justice Department officials doing his bidding have given Comey and his legal team some material to work with in this new case, which could wind up being a rare example of one that gets tossed out pretrial.....

Before turning to the law, let’s recap some of the recent facts that led to Thursday’s indictment. The president publicly complained that Comey, whom he fired in his first term and who has since spoken out against the president, hadn’t been criminally charged yet by his administration. The federal prosecutor overseeing the Virginia office that was investigating Comey resigned after raising concerns about such a prosecution. The administration then installed a former Trump personal lawyer without prosecutorial experience, Lindsey Halligan, who presented the case to the grand jury herself, over the objection of experienced prosecutors, leading to Comey’s indictment......

Starting with selective prosecution, defendants bringing such motions must show that they were singled out among “similarly situated” people who weren’t charged, and that they were charged for discriminatory reasons such as race, religion or other arbitrary classification, such as having exercised their legal rights. If Comey’s lawyers bring such a motion, then they might focus on that last category and argue that he was targeted for speaking out against Trump or for engaging in some other legally protected activity. They would also need to show that other “similarly situated” people haven’t been charged.

Turning to vindictive prosecution, defendants must show that the prosecutor acted with genuine animus toward the defendant and that the defendant was prosecuted because of that animus. That seems to describe what happened here, with Halligan being a Trump loyalist pursuing his longstanding grudge against Comey, despite experienced prosecutors’ own dim view of the case — but again, the legal standard is favorable to the government in giving prosecutors great deference, especially for their charging decisions......

In the end, Comey’s lawyers could prevail on these rare grounds, but despite the almost comically corrupt circumstances leading to this indictment, success wouldn’t be guaranteed. His arraignment is set for Oct. 9, so we could learn more about his defense plans in the coming days and weeks.