News analysis
Trump’s call to prosecute Comey could bolster former FBI director's defence
Sign up now: Get ST's newsletters delivered to your inbox
Former FBI director James Comey called US President Donald Trump “unethical” and “untethered to truth” in a 2018 memoir.
PHOTO: REUTERS
Follow topic:
Mr Donald Trump achieved a long-sought goal when federal prosecutors brought criminal charges against former Federal Bureau of Investigation (FBI) director James Comey, but the US President’s loud campaign against his adversary may have undermined the case by opening the door to a claim of vindictive prosecution.
Comey pleaded not guilty
His lawyer Patrick Fitzgerald said he would seek to dismiss the indictment on the basis of “vindictive prosecution”, meaning he will seek to show the charges were brought against Comey in retaliation for him exercising his legal rights.
That is a high bar to clear because judges are reluctant to second-guess prosecutors’ charging decisions, legal experts said. But if Comey is successful, he could provide a road map for other Trump rivals seeking to fight potential charges.
The Justice Department and Comey’s lawyers declined to comment.
Trump threatens to jail rivals
Mr Trump, a Republican, has threatened to jail his adversaries throughout his political career, but Comey was the first to be charged with a crime.
Comey, whom Mr Trump fired in 2017 while the FBI was investigating Russian interference in the 2016 election, called Mr Trump “unethical” and “untethered to truth” in a 2018 memoir.
On Oct 9, New York Attorney-General Letitia James was indicted
Mr Trump’s critics say the Comey case shows how he has weaponised the Justice Department to punish adversaries.
The president and his supporters have in turn accused former president Joe Biden and the Democrats of using the Justice Department’s power against Mr Trump, citing two federal indictments he faced after leaving the White House in 2021.
Mr Trump pleaded not guilty in those cases, which were brought by Special Counsel Jack Smith, who was appointed to give the investigation some independence from the Justice Department under Mr Biden.
Both cases have since been dismissed.
Trump calls Comey ‘guilty’
Experts said Comey may argue the prosecution was retaliation for his criticisms of Mr Trump, which are protected under the right to free speech as guaranteed by the US Constitution’s First Amendment.
He may also argue that the prosecution was brought in retaliation for carrying out his duties as a government official, experts said.
Mr Trump’s own public directive to Attorney-General Pam Bondi to charge Comey may provide fodder for the defence’s motion.
Days before charges against Comey were announced on Sept 25, Mr Trump said that Comey, Mr Schiff and James were “guilty as hell” in a Truth Social post addressed to Ms Bondi.
“JUSTICE MUST BE SERVED, NOW!!!” he said in the Sept 20 post, adding that the delay in bringing charges was “killing our reputation and credibility”.
University of North Carolina law professor Carissa Byrne Hessick, who has studied political influence on prosecutors, said there was more information in the public sphere that could back a vindictive prosecution motion than was normal for a criminal case.
“You not only have public statements from the President, but you also have a ton of media accounts that are connecting the dots,” Prof Hessick said.
Officials’ public statements helped wrongly deported Salvadoran migrant Kilmar Abrego
Prosecutor was forced out
Similar motions in recent politically charged cases, such as one against Mr Biden’s son Hunter and another against Mr Trump, have failed.
Judges denied motions by Hunter Biden and Mr Trump to dismiss the cases due to vindictive prosecution, finding that neither had shown a direct link between criticism by their political opponents and the Justice Department’s decision to bring charges.
Experts said the circumstances leading up to Comey’s indictment were different and may help his argument.
Comey was charged by a newly installed federal prosecutor in Virginia, Ms Lindsey Halligan.
Her predecessor Erik Siebert resigned on Sept 19, hours after Mr Trump told reporters: “I want him out.”
Mr Siebert believed the evidence against Comey and James was weak, two people familiar with the matter told Reuters at the time.
Before Ms Halligan presented the case to the grand jury, prosecutors gave her a memo arguing the evidence was insufficient, Reuters reported.
The indictment accuses Comey of lying when he told a Republican senator during a 2020 hearing that he stood behind prior testimony that he did not authorise anyone to serve as an anonymous source in news reports about FBI investigations.
Trial scheduled for January
US District Judge Michael Nachmanoff scheduled Comey’s trial to start on Jan 5, 2026. The planned vindictive prosecution motion is one of several Mr Fitzgerald said he would make to try to have the charges dismissed before then.
Judge Nachmanoff could dismiss the indictment outright if he finds Comey’s motion on its own provides clear evidence the prosecution was vindictive. In previous cases, judges have said a confession of bias by a prosecutor could justify such a finding.
Alternatively, if the judge finds prosecutors likely acted vindictively, he could compel the Justice Department to hand over details of its internal decision-making – a process known as discovery – to help resolve Comey’s motion.
In Abrego’s case, Nashville-based US District Judge Waverly Crenshaw ordered discovery on Oct 3 after finding that vindictive prosecution was likely, a claim prosecutors have denied.
Judge Crenshaw cited Deputy Attorney-General Todd Blanche’s statement in an interview that the criminal investigation began after a judge sided with Abrego in a civil suit.
Ms Anna Cominsky, a professor at New York Law School, said that in Comey’s case, any discovery showing Mr Siebert thought the case should not be brought may boost his vindictive prosecution motion.
“If that’s somehow documented, that would be really strong evidence in their favour,” Ms Cominsky said. REUTERS
