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.”
Don’t care if he goes to jail or not. Bleed him dry. bankrupt him. Squash him like the cockroach he is.
It’s not “prosecution”, it’s “accountability for crimes against humanity”.
One of Trump’s first-term attorneys general, William Barr, publicly complained in 2020 that Trump should “stop tweeting about Department of Justice criminal cases” because the president’s entreaties were making it “impossible” for Barr to “assure the courts and the prosecutors … that we’re doing our work with integrity.”
In his second term, however, Bondi and other top DOJ leaders appear to have acquiesced readily to Trump’s demands.
Comey is patently guilty of which he protests to not be of. He literally did the dirty work of the briben regime , the deep leftist apparatchik state and the tainted FBLie. Comey’s version conflicts with his henchman McCabe’s version starkly…… one of these cogs or both are lying.
Dems skate
Republicans are frog marched in leg irons
And no one in the legacy media gives a damn (and, in fact, gleefully celebrate the disparate treatment)
A sophist uses tools of deception to make a weaker case the stronger.
Exhibit A: Comey’s “2020 statement is not a false statement.”
BTW, if that deception were accurate, the English language would not have pronouns.
Another dem-o-rat who can’t keeps has hands off of private property, and using a gun too.
Wait. Don’t you libs hate guns???
Man Who Ripped Down Trump Banner, Fired Shots at Owner Has Been Tracked Down and Arrested
What happened to Americans’ Witchcraft Era learnings regarding the hazards of flimsy prosecutions?
When competing cliques openly distort law into a quest for vengeance, the nation basically rejects its commitment to establish Justice, to ensure domestic tranquility, and to promote the general welfare.
Prof Turley – Who know what the lower courts will do,
But there is zero possibility that the Supreme court is going to toss an indictment over any off this.
You are correct – this case will drag out for years. It is not likely Comey will be convicted.
Though he should be. Frankly Comey’s bet bet is to Rush to a jury trial and hope for Jury nullifaction.
Betting that a Jury in 3 years will be more rather than less favorable to him is not a good gamble.
There is also poetic Justice in Comey getting done to him what he did to others.
Totally agree with your final statement. A taste of his own medicine of having to fund a defense. The Trump v. Left fight has raged for years and the biggest beneficiaries have been the defense bar. If the cases brought against Trump were not deemed malicious prosecutions, how could this one. All the same.
The apparatchiks in the “system” like Comey know full and well that the process is the punishment. Used to bankrupt and leverage innocent people to plead guilty. The FBLie are experts at this in the last admin.
The official American language is English.
The NFL, Shawn Corey Carter, and Bad Bunny will be espousing, expounding, advocating, and using the Spanish language.
These acts constitute national betrayal, subversion, insurrection, and rebellion and, as such, must be effectively neutralized with extreme prejudice.
I could sic some of my cats on them???
https://www.youtube.com/shorts/H6NfQda_Q-g
Meow, Floyd! 🐈 😻 🐈⬛️ 🐱
Now that a cat with balllllllllls LOL
NFL is slowly dying. Damn shame, but they did it to themselves.
Here’s a cool one! Katie Porter again, lying about her 12-year-old daughter, and going after Riley Gaines:
FAFO!
For something hauntingly beautiful. I found this in my Palgrave’s that came in today:
http://www.youtube.com/watch?v=mrjStSqu_w4
The song is for you ANON-BOZO!
“Ceasefire now” has been a euphemism for Hamas victory since the terrorist attack on 10/7/23. Now that a ceasefire deal looks likely to become effective, those same Hamas sympathizers are strangely silent:
https://nypost.com/2025/10/09/opinion/pro-hamas-ceasefire-crowd-goes-silent-on-trumps-peace-deal/
Only a fool would call the 20pt. Trump Deal a ‘Hamas victory’. .. but any ceasefire should be welcomed by all rational and decent human beings.
*in fact, I think Hamas has little to do with it,
d
In the name of God, in the name of human decency, Hamas must have been immutably eradicated.
Vile actions will never be “immutably eradicated” unless the human race evolves or is destroyed.
James has been charged with two felonies in Virginia but it appears she committed fraud 8n New York too. US Attorney needs to get busy there too.
Pam Bondi is an idiot for allowing Halligan to take the lead on this indictment. The same applies to the indictment of Leticia James. At least in that case the SOL hasn’t run.
Trust him; Daniel knows idiots!
^^^verified Idiot
Signed,
Daniel
I do appreciate and accept your full and complete concession.
Thank you so much.
I was unclear who was doing the ‘oversight’ during AG Bondi’s testimony before the Senate Judiciary Oversight committee yesterday.
*There is no need for AG Bondi to testify before the senate judiciary oversight committee again imo. It’s a waste of time. As President Trump’s Personal Lawyer, everything he does is completely lawful, above oversight. .. and fully protected by attorney/client privilege.
DG
Pay attention. Pam enjoys smacking the dems around.
Unlike our last AG under biden.
Alex Jones is appealing to the Supreme Court to have his defamation judgment ($1.1B) lifted. This was the case where he raised funds by duping an audience into believing the Sandy Hook school shooting was a staged, faked event, done to sway public opinion on gun control. The anguish to the surviving parents was duly considered by a Jury, and Jones found liable for defaming the parents and their deceased child.
I’m hoping Prof. Turley will write on this case. Alex Jones is claiming his 1st Amendment rights protect him from defamation (civil) lawsuit. I thought 1A only disallowed government prosecution. It leaves to private citizens the job of upholding standards of public discourse, with monetary punishment not imprisonment. Is that right?
Isn’t there something about cruel and unusual punishment? Mr. Jones believed what he said, mens rea? Idk the spellin’..
Even with inflation…
1A’s protections are not limited to the arena of criminal law. 1A also limits some aspects of state defamation law, and includes protections against civil penalties too, to some extent (for example, 1A would prevent someone from having their fishing license revoked for expressing a disfavored political opinion). With Alex Jones it seems to me that his challenge should have been brought under the Excessive Fines clause of 8A, no?
1st Amendment
Congress shall make no law…abridging the freedom of speech….
_______________________________________________________________________
Freedom of speech is a constitutional right of an individual that cannot be denied by Congress or a state.
Legislation that abridges speech is unconstitutional.
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
Defamation requires a knowingly false statement that causes actual harm to the reputation of another person.
And typically has a 2 year SOL.
There is no alleged emotional distress provision. The parents were not named, and they were not actually defamed.
Jones said nothing that damaged their reputation.
Defamation requires a false statement – But it also requires a lie about the plantif’s reputation.
There is another Major reason that SCOTUS will likely use the Jones case to reign in Defamation Abuse.
If the Jones case goes – E Jean Carrols case is gone too.
Yes. Also, mens rea.
Rational response to Jones broadcast is to correct his information and request apology. The apology might be a notice in newspapers and correction daily by Jones in subsequent broadcasts for 2 weeks daily. He had no intention of harm. His point was 2A.
Apparently Jones is controversial? Idk
IMO
Who enforces a civil lawsuit, dunce?
PBINCA – the Jones case was a stupid travesty of justice.
Jones only said ANYTHING – Once, he did NOT fund raise of it,
The SOL had expired, the cases should have been dismissed outright, and Jones was litterally denied the right to defend himself. And these are only a few of the massive errors in these cases.
I wonder, are the libs making money off of Charlie death?
*. If the DOJ isn’t going for organized crime within the government under the now infamous Obama it’s small potatoes. They derailed a presidency and two attempted assassinations is sufficient to know evil as the slow steady grind continues. Ew
Turley: have you NO shame? We all know, including the MAGAts if they are honest, that everything you write is purchased by MAGA media, and intended to reassure the disciples that democracy really isn’t going down the toilet, that Trump really isn’t getting attorneys to violate their oath to the Constitution to do his bidding to punish his enemies, instead of complying with the Rules of Professional Conduct, to deflect away from the fact that most Americans know that the shut down is over taking away subsidies for those who rely on Obamacare so as to give massive tax breaks to the wealthiest, that inflation and the cost of goods haven’t gone down, but up, that the Epstein scandal isn’t ever going to go away and that Speaker Johnson is refusing to seat that representative from Arizona to try to prevent the the vote to release the Epstein files, to deflect away from Pammie Jo’s disasterous performance before the Senate yesterday in which she wouldn’t answer questions and instead went on a MAGA-themed tirade, making false accusations against Senators, and that we all now know that there are photos of Trump with half-naked underage girls, as reported by journalist Michael Wolff.
Trump publicly ORDERED Pammie Jo to indict Comey–and when she couldn’t find ANY experienced, career prosecutor to do it, fired one, with others resigning, so they illegally appointed third runner up to the Miss Colorado Beauty Pageant–Lindsey Halligan– who has NEVER prosecuted a case, whose only experience was representing insurance companies. Her illegal appointment will be challenged–she has NO valid authority. Now, he’s gone after Letitia James. Who’s next? Turley–you DO know that it is a violation of the Rules of Professional Conduct for a federal prosecutor to take their marching orders from a politician to go after his perceived enemies, especially when there is documentary evidence, in the form of DOJ memos explaining WHY there is NO valid evidence against Comey. Stop repeating the MAGA lie about the “Steele Dossier”–that had nothing to do with the investigation into Russian interference, in 2020 and you know it.
Yesterday’s hearing was a joke–they brought in prosecutors from other jurisdictions who, when asked by the Judge about the grounds for the indictment and the evidence to support it, couldn’t answer–BECAUSE THEY DIDN’T KNOW. They have produced NO discovery to Comey’s counsel. The memo explaining why there is no evidence to support indicting Comey will be Exhibit “A” to the Motion to Dismiss.
Turley wants to talk about “making history”–well how about Trump sending Federal troops to cities with Democrat mayors and lying about the need for it? How about these records for a US President: pleaded the 5th 440 times, 88 felony charges, 34 felony convictions, 26 assault accusations, 7 times on Epstein’s plane, 6 bankruptcies, 5 draft deferments, 3 Baby Mamas, impeached twice.
Allow me to translate the above
“Vomit, diarrhea, chlamydia puss”
Meritocratic argument has left the building.
gigi spits out more slop she picked up from georgie and the internet. so predictable
Oh Gigi… another one of those days when every one of your vibrators are faking dead batteries in hopes of getting at least one day of rest from your two fisted abuse?
You have more rage than the usual Tranny Mas murderer.
A grand Jury in a very blue district indicted Comey, another indicted James.
These cases would be slam dunks in any district.
Democracy is not going down the toilet – not that this country is a democracy.
Regardless Trump was elected democratically, and what he is doing has even more popular support that he has.
You can insult Trump supporters – that is a really stupid move Democrats keep falling into.
But you can not change the FACT that democrats are extremely unpopular – even among themselves.
Your party is divided – You can curry favor with the far left and lose moderate dems and independents, or you can more right and lose the nut jobs and have little to distinguish you from MAGA republicans.
And this is not likely to get better.
No one has violated their oath to the constitution – in Fact this is the most constitutionally compliant presidency in my lifetime – though that is still not very compliant.
Still it is far better than Bush Obama, Biden.
Whether you like it or NOT the indictments PROVE that those attorneys that said there is no probable case were wrong. Two grand juries decided there was.
And just listen to Comey’s motions – he is not arguing “I am Innocent”
He is arguing “I should get away with it”
Maybe he will win that argument – I doubt that but I am OK with that.
Better 10 guilty go free than one innocent is convicted.
But there is no sanctimonious hypocrit who deserves this more than Comey.
James deserves what is coming to her – But Comey is on another level of Evil.
Again – Democracy is doing fine – Left wing nut stupidity is going down the toilet where it belongs.
“fact that most Americans know that the shut down is over taking away subsidies for those who rely on Obamacare”
Absolutely – But the Federal Government is NOT a charity. Nothing in the constitution gives the fereal govenrment the power to provide healthcare to citizens – much less non-citizens. do you really want the US to rob people to provide free healthcare to the world ?
Epstein may not go away – but it STILL has nothing to do with Trump.
Bondi is doing quite well and her sebate performance was excellent.
Hopefully Schiff’s indictment for conspiring to leak classified information is upcoming.
Two democrat judges have correctly thwarted the release of Epstein files.
There is a pesky thing call the constitution in the way.
DOJ whether under Trump or Biden can investigate, it can indict, it can prosecute.
But it speaks throught the courts, not by violating constitutional rights – not even the rights of scum bags.
Regardless if Trump was in the epstein files – it would have leakjed big tinme under Biden.
“as reported by journalist Michael Wolff.”
Enough said.
Has Wolf been right about anything.
SCOTUS is not going to overturn indictiments.
“Who’s next?”
Schiff and others who destroyed evidence, leaked, lied to congress and fabricated evidence,
“DO know that it is a violation of the Rules of Professional Conduct for a federal prosecutor to take their marching orders from a politician to go after his perceived enemies”
That is both false and stupid.
That would mean you can get away with murder so long as you could make the president your political enemy.
“especially when there is documentary evidence, in the form of DOJ memos explaining WHY there is NO valid evidence against Comey.”
Not what they say and not relevant – Comey and james were indicted – a Grand Jury in a blue state found probable case.
“The “Steele Dossier”–that had nothing to do with the investigation into Russian interference, in 2020 and you know it.”
There was no investigation into Russian interferance in 2020 – that ended in failure in 2018
“Yesterday’s hearing was a joke”
It was – he grand jury indicted – constitutionally that means there is probable cause.
“They have produced NO discovery to Comey’s counsel.”
It has only been a few says and if DOJ delays – that means Comey gets a delay for free,
“well how about Trump sending Federal troops to cities with Democrat mayors and lying about the need for it?”
Little Rock ? Ole Miss ? Newark ? BTW the NG are STATE troops, not federal that is why posse comitas does not apply.
How about a President who survided an assassination attempt by millimeters, And was on his feet under Fire yelly Fight, Fight Fight ?