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.”