James Comey made history this week by standing in the dock and entering a not guilty plea as the first FBI Director ever indicted in the history of the country. Comey hopes to be spared the added ignoble distinction of a trial scheduled for 2026. He and his counsel, Patrick Fitzgerald, are reportedly going to seek a dismissal under three primary challenges: vindictive prosecution, selective prosecution, and challenging the status of the acting U.S. Attorney, Lindsey Halligan. I wanted to briefly address these claims, including the one that has the most credibility.
As a threshold matter, there is a particular irony in the date selected for the Comey trial: January 5, 2026. That is the anniversary of a notorious briefing of President Barack Obama that laid the foundation for the Russian collusion investigation that Comey would push as director. The intelligence community had already debunked the infamous Steele Dossier, secretly funded and disseminated by the Clinton campaign. Indeed, an intelligence community assessment had found no evidence of a material impact of Russian actors on the 2016 election. Top officials immediately moved to bury the report and to order a new report by a carefully selected group in the final days of the Obama Administration. The result was a report that was ultimately leaked to the media suggesting that there was evidence of Russian interference with the election in support of Trump. Comey and others would use the report to justify what would later become the special counsel’s investigation that effectively derailed Trump’s first term.
Comey is now scheduled to answer for alleged lies and leaks on the ninth anniversary of that meeting.
Vindictive Prosecution
The first two claims are equally laden with a heavy dose of irony. Comey has been accused of intense bias in his actions as FBI Director in targeting Trump and his associates. His top aides expressed open animus for Trump, leaked stories to harm him, and even committed crimes to continue an investigation that was debunked before it started.
Vindictive prosecution claims focus on the motivations of the prosecutors in singling out the defendant. Comey will argue that the charges were the result of a retaliatory effort that originated at the very top with President Trump. The courts overwhelmingly reject these claims. Judges decline to consider the motivations of a prosecutor in an otherwise valid charge.
The vindictive prosecution claim by Comey will rely heavily on President Trump’s own statements. In a Sept. 20 post on Truth Social, Trump declared Comey was “guilty as hell” and, in a message directed toward Attorney General Pam Bondi, stated “We can’t delay any longer,” and “JUSTICE MUST BE SERVED, NOW!!!” It was a remarkably inappropriate and damaging social media post. While the President deleted the posting, the damage was done. The controversy was a repeat from the first term when Trump’s social media postings were used to undermine Administration positions in court.
Despite this unforced error, the odds still favor the Administration in ultimately prevailing on this claim, even if the district court judge were to rule for Comey.
Selective Prosecution
The most ironic of the first two claims is that of selective prosecution, where a defendant argues that similarly situated people routinely commit the same acts but are not charged. Comey and the Special Counsel were accused of precisely that violation repeatedly. They prosecuted Trump associates on wafer-thin false statement claims that resulted in virtually no jail time for the defendants. In the case of former National Security Advisor Michael Flynn, Comey bragged about how he circumvented standard procedures to nail Flynn in the opening days of the Trump Administration.
On his book tour heralding his own “ethical leadership,” Comey thrilled audiences by taking credit for the controversial charge. He explained that it was:
“something we’ve, I probably wouldn’t have done or maybe gotten away with in a more organized investigation, a more organized administration…I thought, ‘It’s early enough, let’s just send a couple of guys over.’”
The actual agents who interviewed Flynn did not believe that he intentionally lied about a meeting with Russian diplomats, but Comey and his investigators pushed for charges anyway. They drained Flynn of resources, threatened to indict his son, and ultimately secured a guilty plea.
Now, it is Comey claiming victim status in being selectively targeted for his own alleged false statements to Congress. As with vindictive prosecution, these claims are routinely and overwhelmingly rejected by courts. Once again, Comey is viewed as having a favorable Biden-appointed judge, but a dismissal on selective prosecution seems unlikely. To prevail in claiming a violation of equal protection, Comey must show that charges were “deliberately based upon an unjustifiable standard.” Comey himself helped establish the record of other false statements.
Unlawful Appointment
The final claim may have more potential for Comey. He will claim that Lindsey Halligan, who signed off on the grand jury indictment, was unlawfully appointed to her position. This technicality could derail the case because the Administration does not have the luxury of going back and redoing the indictment. The Trump Administration brought down the indictment shortly before the expiration of the five-year statute of limitations. If any of these claims succeed, the case is likely dead as Delinger.
This issue turns on a somewhat arcane provision under Section 546(d) of Title 28 of the United States Code, which authorizes an Attorney General to appoint an interim United States Attorney for a term of 120 days. The problem is that the Trump Administration used that provision to appoint Erik Siebert, the predecessor of Halligan. The statute says that once the 120-day period has ended, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”
Comey will argue that this is a one-time option and that the appointment of a new acting U.S. Attorney had to be made by the district court. If so, the indictment was invalid and, again, the case is dead and cannot be revived with the expiration of the statute of limitations.
In Siebert’s case, his term expired 120 days after his Jan. 21 appointment by Acting Attorney General James McHenry, on or about May 21. After that, Whelan said, Eastern District of Virginia judges appointed him to continue to serve.
Comey has the advantage of being able to cite a memorandum by none other than Supreme Court Justice Samuel Alito from when he served in the Office of Legal Counsel in 1986. Alito concluded that “after the expiration of the 120-day period further interim appointments are to be made by the court rather than by the Attorney General.” He added, “it would appear that Congress intended to confer on the Attorney General only the power to make one interim appointment; a subsequent interim appointment would have to be made by the district court.”
The Trump Administration can argue that Trump fired Siebert, thereby vacating the office for a second time. Under this argument, the process restarts with the vacancy. Comey will argue that this could allow a president to circumvent the intent of Congress by firing acting U.S. Attorneys to daisy chain vacancies allowing endless new 120-day periods to run.
While these are tough claims to make in a criminal case, the case is equally challenging for the Trump Administration. Putting aside the fact that they are in front of a Biden-appointed judge in a heavily Democratic district, the claims of false statements and obstruction often turn on highly interpretative views of a person’s intent or knowledge. If Comey succeeds on these threshold challenges, the case could also be bogged down for years in appeals. A Democratic president could then scuttle any trial or he could be given a pardon to end the matter effectively.
In other words, it does not sound like Comey is going to jail any time soon.
Turley is the Shapiro Professor of Public Interest Law at George Washington University and a criminal defense attorney. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”
Thank you professor for that interesting legal analysis. I do think Comey will walk and justice will not have been served.
No one cares what you think, especially Turley.
Meanwhile, in the Real World. I am watching this on TV now. Horrifying but fascinating. She was on a Reality TV show once, Paternity Court:
Found the Paternity Court episode:
internet and tv at the same time. No wonder you know nothing. Read books, if you have the attention span for them. But you don’t.
I currently have four books in progress:
1> Anglo Saxon Poetry from the Everyman Library,
2> Poems of Byron
3>Sex and Culture by Unwin
4>A Sherlock Holmes Alphabet of Cases by Roger Riccard, which is both fantastic and CHEAP on Kindle.
I am not counting The Discarded Image by C.S. Lewis, because this is my second time thru the book.
In Addition, I am in the process of writing a book. There are other books that I read in during spates -Been In The Storm So Long – by Litwack. It is about the post emancipation slaves, and it is fascinating but a slow read. It is shelved for the nonce while I finish the other books. I am also almost thru a Beowulf from some Don at Oxford or Cambridge, back around 1910 or so. Then, I have ordered a 1926 Palgrave’s Golden Treasury, Gus and the Baby Ghost by Thayer, and The Perils of Sherlock Holmes by Estleman.
Also, as research for my book, there are several other esoteric, eclectic books, that I cannot name, lest it give away my story idea.
But I do appreciate your concern about my Intellectual development. FWIW, there is one poem from the Anglo Saxon book, that is wonderful. It is also on youtube. Tolkien supposedly utilized it in The Lord of the Rings.
Floyd,
Very impressive!
Was going to ask what your book was about, but you want to keep it under wraps. Good on you!
It is a Sherlock Holmes book. If I finish it, I will probably not sell many copies, or make much money. BUT, it would make a helluva movie!
Floyd,
Let us know if and when you publish! I will buy a copy!
Floyd, Great backatchya post to that stupid Anon, who may not be worth such a dignified and evolved response.
The Democrats need to be jailed by the 10,000’s for
1) Russian Hoax and Trump Persecution
2) Protecting bidens and others crimes
3) Jan 6th entrapment
4) Vote Crimes
5) Helping Illegals
6) Child endangerment!
7) Killing Charlie Kirk and calls for violence
Buy a new keyboard. Your “shift” key seems to be malfunctioning.
—
Vindictive prosecution will be very easy to prove.
Trump was fined $500 Million for paying back a loan…only person in RECORDED History!
Of course every prosecution is vindictive in that the govt is seeking to punish the alleged wrongdoer. But, I wonder, if a prosecution can be derailed on this charge would you agree that any charges brought against Donald Trump by Letitia James or Alvin Bragg suffer from the same flaw?
garyesq2k2,
“But, I wonder, if a prosecution can be derailed on this charge would you agree that any charges brought against Donald Trump by Letitia James or Alvin Bragg suffer from the same flaw?”
Great point!
And completely irrelevant
As turley noted the question is
Is there evidence of a crime
The answer is damning evidence
I robbed a bank and the only reason they are coming after me is because Trump is a vindictive political enemy, jealous of my money. In what La La Land would this make sense? Well in 2025 America of course.
Congress needs to change the laws that say lying to a federal officer/ congress of lying under oath is a crime because prosecutions seem to be mostly political or vindictive.
Grammar error. Should say “or” lying under oath.
And thus makes the point that there is a two-tiered justice system in this nation. It depends who hires the best law team and how much money they have. There is that. Unless Comey has endless resources, his legal fees will be enormous.
He will be tied up in court, his coffee won’t taste quite as good and his swagger might be diminished. In its own way, even if he wins, he loses.
That is the point of lawfare and what makes his prosecution so juicy. With any luck Comey will soon be penniless.
The dems will rally to his defense. He will have more money at the end than he started with.
A cable of US politicians and bureaucrats tried to undermine an administration as well as destabilize the nation and it’s unlikely that any of them will be convicted. So when does justice for the citizens and protection for the republic kick in?
Its CABAL. Clearly you can’t write a coherent sentence. Its unlikely you will.
Get lost ANON!!
Those of us with a degree of critical thinking, logic and common sense knew exactly what Margot was saying. She simply miss-typed or autocorrect kicked in.
@UpstateFarmer – Of no consequence as Margot noted, it’s only the Blue Banana aka (anonymous).
Never, because that’s not what the law is for, and you’d hate it if it were.
The only legitimate question for a legal system to ask is “did person X violate law Y by doing Z?”
Anything else is Mob law. Which is all well and good so long as your buddy is the Boss. The day he’s not, you’re likely to get whacked.
–Shannon
Margot,
Unfortunately, these swamp creatures will never see the inside of a jail cell for their crimes. Until they do, they will continue to do as they do with that smug look on their face.
Its disappointing to read about another Democrat political operative getting away with crimes that the average US citizen would be jailed for doing – again proving these hacks are, in fact, above the law. Nothing will change until these criminals are made to pay the price for such unethical behavior that has no place in government.
If I recall, the judge in the case is a Biden appointee. I expected the case to be dismissed with prejudice yesterday. That it wasn’t was startling. We will see how this plays out but I fully expect him to walk.
With all due respect, Mr. Turley, I believe you meant “Dead as Dillinger”. Thank you.
Or David Dellinger.
Here’s a great pick-me-up! CBS has a new Editor-in-Chief, Bari Weiss. She is anti-woke.
https://www.youtube.com/watch?v=P1T3K4DpUKw
Her memo:
My goal in the coming days and weeks is to get to know you. I want to hear from you about what’s working, what isn’t, and your thoughts on how we can make CBS News the most trusted news organization in America and the world. I’ll approach it the way any reporter would—with an open mind, a fresh notebook, and an urgent deadline.
What I can tell you on day one is that I stand for the same core journalistic values that have defined this profession since the beginning, and I will continue to champion them alongside you:
1 Journalism that reports on the world as it actually is.
2 Journalism that is fair, fearless, and factual.
3 Journalism that respects our audience enough to tell the truth plainly—wherever it leads.
4 Journalism that makes sense of a noisy, confusing world.
5 Journalism that explains things clearly, without pretension or jargon.
6 Journalism that holds both American political parties to equal scrutiny.
7 Journalism that embraces a wide spectrum of views and voices so that the audience can contend with the best arguments on all sides of a debate.
8 Journalism that rushes toward the most interesting and important stories, regardless of their unpopularity.
9 Journalism that uses all of the tools of the digital era.
10 Journalism that understands that the best way to serve America is to endeavor to present the public with the facts, first and foremost.
I look forward to meeting many of you in the days ahead and to listening and learning from you. I am profoundly honored to join you—and I can’t wait to get started.
With gratitude and excitement,
Bari
I bet the staff there are apoplectic. Good!
Supposedly, the Woke Staffers are going berserk. Bari Weiss was pretty much woke-mobbed out of the New York Times. Her boss ended up leaving, too. He wrote a long, good article about it.
https://www.economist.com/1843/2023/12/14/when-the-new-york-times-lost-its-way
E.M.
Bari took her newsletter, Common Sense, and turned it into The Free Press with 1.4 million paying subscribers. Her news room is very diverse. She holds debates and talks with all kinds of people, and draws massive crowds. And that is what has the CBS staff afraid? Oh, yeah, diverse news staff. Not all one sided, leftist crap. I hope she can bring 60 Minutes back to its roots as a serious, news production. Not the fluff it is now.
Floyd,
I got a email from her in my in-box the other day, making the announcement! Watching the left melt down has been awesome!
Quoting Biden, “This is a big fckin deal!” The Legacy Media is one of the Democrat Party’s Pillars, just like Academia. That is why the Left had a meltdown when Musk purchased Twitter. Hopefully, Democrats who give interviews to CBS will no longer get softball questions, and this terrifies the Left. Witness the Klarman-Turley debate, and the Katie Porter meltdown about being asked follow-up questions. I posted it yesterday.
Floyd,
Porter has some serious anger management issues!! HA!
“What I can tell you on day one is that I stand for the same core journalistic values that have defined this profession since the beginning, and I will continue to champion them alongside you:”
I wish her much luck, but imo the only way she could possibly achieve that would be to fire nearly everyone and build the organization over from scratch.
Pray for a superseding indictment
Cease fire in Gaza. Will this get Trump his much deserved Nobel Peace prize?
There’s about as much chance that Trump forcing Israel to allow the genocidal terrorists in Hamas to survive will result in long lasting peace as there is a chance of Comey being convicted of anything.
But yes, it might force the Nobel Prize committee to attempt to redeem itself by giving Trump a Nobel Prize after giving Obama one. before he started all those Democracy Project new wars in the Middle East.
Donald J. Trump no more deserves the Peace Prize than Barack Hussein Obama did. (His accepting it was perhaps the most disappointing thing he did.)
That opinion is, of course, subject to change, based on events, and in the unlikely event that peace happens over there, I’ll consider revising it.
And I say that as one who thinks that the Nobel Peace Prize has been degraded to the point of irrelevance by the decisions of the Committee.
–Shannon
Independent Bob,
Seeing as how the Nobel committee gave the prize to Obama for . . . nothing, if I were Trump, I would think this is a better prize,
“Eli Dukorski, the mayor of Kiryat Bialik, near Haifa, announces plans to name the city’s new soccer field after US President Donald Trump, in recognition of his “significant contribution to the release of our hostages.”
I wonder why Hunter, er, Autopen, er, Sleepy Joe didn’t include Comey in Pardonfest. Too bad. Even if he’s off the hook I hope it’ll drain his finances and whatever happiness someone like him experiences.
If nothing else, if the case drags on, the government has more money than Comey and his punishment might be going broke. One can only hope that this evil man does not manage to escape justice on a technicality.
Though one can only hope!
The Russia collusion hoax is still going on, so not statute of limitations problem there.
Well, that’s not going to sit well with the fire eaters. Lesson here – bring the charges earlier so you don’t run into issues with the statute of limitations
Hard to do with the deep staters running interference for Comey.
Of course for four years of the statutory period the DOJ was under the Biden admin,
I agree in that Trump certainly had evidence of Comey and all the rest of Obama’s Attorney Generals and FBI Directors perjuring themselves repeatedly to Judge Boasberg’s FISA courts by the last year of his first term in office.
But then, Trump had earlier said about Clinton after his election “The Clintons have suffered enough; they are good people”.
In the case of going after Comey as an unindicted felon, his DoJ went to the Grand Jury just eight months after he returned to office. With all the issues flying at them and trying to get off to a running start, it was easy for Comey to continue hiding in the cesspool to almost let the Statute Of Limitations save him yet again.
This was not your normal carefully planned and methodical prosecution, aside from all the Comey and Biden loyalists still infesting the DoJ infrastructure.
That is not good news, but it might be happy news in one way. If it drags on, Comey is not a good person to have out there as a Democrat hero.