DISMISS THIS! Dumping the Comey Case Before Trial [View all]

Harry Litman

Federal courts are reluctant to dismiss criminal cases before trial. The law strongly favors letting the government put on its case, after which a defendant can argue that the evidence is legally insufficient. That’s the role of Rule 29, which allows a motion for judgment of acquittal if no rational jury could convict. Those motions succeed only rarely.

There also is a narrower avenue: Rule 12 of the Federal Rules of Criminal Procedure, which permits pre-trial dismissal where an issue can be resolved without reference to evidence. Typical examples include an indictment that fails to state an offense, a jurisdictional defect, or a constitutional bar. Rule 12 is not a frequent winner for defendants, but it exists to prevent trials from proceeding where there is no legal basis to begin with.

When looking at the indictment against Jim Comey, several of its flaws seem at first blush to be strong candidates for dismissal by the court under Rule 12. Among them: 1) the alleged misstatement by Comey could not have been “material,” as the law requires; 2) Senator Cruz’s convoluted question could not ground a prosecution for false statements; 3) Comey’s actual words—“I stick by my prior testimony”—were not false; and 4) the indictment’s identification of Dan Richman as “Person 3,” supposedly inside DOJ, appears mistaken.

But the problem is that each of these arguments ultimately turns on disputed facts. Courts, applying the standard of assuming the indictment’s allegations to be true, generally hold that such claims must be tested at trial. Hence the expectation that these defenses would be raised later under Rule 29 rather than pre-trial.

https://harrylitman.substack.com/p/dismiss-this