The defense makes the classic anti-lawfare motion to dismiss the indictment. Such claims tend to fail — even strong ones.
Yesterday, we posted my piece looking at former FBI Director James Comey’s first round of pretrial motions seeking dismissal of the Trump Justice Department’s two-count indictment, charging him with making a false statement and obstruction of Congress, both allegedly arising out of his September 30, 2020, testimony before the Senate Judiciary Committee. In the column, I addressed why I believe it’s already clear that the indictment should be dismissed because (a) it fails to state a charge and (b) Comey’s disputed testimony was obviously true while the government’s version of it is incoherent — even though the defense won’t be filing a formal motion along those lines until the second round, due in a couple of weeks.
In the next this post and two that will follow, I will address two defense motions that have been filed and a prosecution gambit — seeking to lay the groundwork to disqualify Comey’s principal defense lawyer, Patrick Fitzgerald.
[To avoid belaboring the record, I will assume that readers following these posts are familiar with my disclosure that I have longstanding ties to people prominent on the defense side of the case. I haven’t had any contact with them regarding the case. I do my best to keep personal affection out of legal analysis; it’s for the reader to decide how successful I am on that score.]
Comey’s initial set of papers includes a motion to dismiss the indictment on the basis of selective, vindictive prosecution. As forecast here over a week ago, such motions are very uphill for defendants, but Comey’s is as meritorious as any I recall seeing — understanding, of course, that the Justice Department has yet to respond.
Selective prosecution claims arise more often than you would expect, and fail with numbing regularity, because of fundamental principles of our justice system. Prosecution is a unilateral executive power, and prosecutorial discretion is a staple of the system; therefore, every decision to file charges — whether the evidence is strong or seemingly nonexistent — can be said to reflect a subjective prosecutorial judgment, although the Justice Department guides the judgment by objective criteria, and theoretically judicial review and congressional oversight keep things reasonably on the up and up. Hence, in virtually any case, a defendant can claim that it was animus, rather than evidence, that drove the prosecutor’s discretionary decision to indict.
Since it’s thus easy to claim bias, it’s generally not enough for a defendant to show that he has been singled out based on invalid grounds. (In our jurisprudence, racial prejudice is the paradigm for constitutionally invalid invidious discrimination; but the motion arises routinely in politically charged cases because political bias is also an improper motive for prosecution — and, I daresay, one that arises more often in our politically charged times than racial or ethnic prejudice.)
Even if a defendant can demonstrate that the prosecutor, or the president to whom the prosecutor answers, harbored a remarkable degree of hostility against him, the selective prosecution motion is highly likely to fail if the accused cannot establish that the Justice Department does not prosecute defendants who are similarly situated — except that they lack the characteristic (here, vigorous political opposition to the president) that arguably caused the accused to be selected for prosecution.
This, to me, is the place where the law and what we might call the “eye test” part company. You can be certain in your bones as a matter of common sense that the defendant would not have been charged if government officials had not loathed him as a political enemy; but if the government can show that the charge against him is brought with at least some regularity against other offenders, the defendant is probably going to lose a selective prosecution motion — just as, for example, President Trump lost his selective prosecution motions in the Democrats’ lawfare campaign.
Comey’s proof that President Trump harbors a deep loathing of Comey and applied unseemly pressure on underlings to charge him is overwhelming. The president has been unconstrained in publicly lambasting Comey as evil and corrupt. He publicly rebuked Attorney General Pamela Bondi for the failure to charge Comey (in his now-infamous September 20 post). He fired the district U.S. attorney who declined to bring the Comey case — replacing him with a loyalist who, though never having prosecuted a criminal case, indicted Comey days later. And beyond that, the defense points out it has been credibly reported that in his first term, Trump expressed a desire to deploy the Internal Revenue Service against the FBI director he had then-recently fired — only to back down due to the adamant opposition of his then-chief of staff, retired General John F. Kelly. (It is a federal crime, punishable by up to five years’ imprisonment, for the president or other executive officials to cause the IRS to audit a taxpayer — see Section 7217 of the Tax Code; see also my 2022 column discussing the peculiar audits of Comey and his former deputy director, Andrew McCabe, after General Kelly resigned.)
It would be hard to imagine stronger proof of both vindictiveness and improper pressure to indict. And it was brought to bear, the defense points out, after career DOJ prosecutors — the DOJ in Trump’s first term, the DOJ’s then-inspector general Michael Horowitz, and special counsel John Durham, appointed by Trump’s first-term DOJ to investigate the genesis of the FBI’s Russiagate probe — conducted multiple investigations of Comey (in particular, of Comey’s interactions with Columbia law professor and former FBI special government employee Dan Richman) and concluded that there was insufficient evidence to prosecute (despite finding solid reasons to condemn some of Comey’s actions).
Comey argues that his prosecution violates the Constitution on two grounds. First, he alleges that President Trump is invoking prosecutorial power punitively in response to Comey’s high-profile dissent against Trump’s assertedly corrupt actions and unfitness to serve, in violation of the First Amendment. Second, like all defendants who claim selective prosecution, Comey urges that the Trump DOJ’s indictment violates equal-protection protection principles because he has been singled out based on an arbitrary classification to which the Trump DOJ does not subject similarly situated defendants — in sum, “Comey would not have been prosecuted but for President Trump’s animus,” as the motion puts it.
On this score, Comey argues that the patent flaws in the indictment (addressed in yesterday’s column) underscore that, since he is not being prosecuted based on compelling evidence, the charges can only be explained by Trump’s animus — an improper rationale for prosecution.
Moreover, on the matter of arguably most significance in the selective prosecution context, Comey specifies that at least four former officials from the first Trump administration — Attorney General Jeff Sessions, Environmental Protection Agency Administrator Scott Pruitt, Health and Human Services Secretary Tom Price, and Treasury Secretary Steve Mnuchin — were accused of lying in Senate testimony, under circumstances in which, Comey contends, the evidence of deceit was stronger than what he portrays as the non-existent evidence of deceit in his case. Ergo, the defense argues, the prosecution of Comey, after the Justice Department under Trump declined prosecution against other agency heads, can be explained only by Trump’s abhorrence of and determination to punish Comey.
On that point, Comey’s counsel have cleverly tried to narrow the world of relevant prosecutions, contending that the court should compare Comey’s case only to other Trump agency heads. I don’t think this will work, though. I believe the government will counter that the court should more broadly explore false statements and obstruction prosecutions in an effort to show that it’s not unusual for the government to bring such cases.
As rare as it is for defendants to win a selective prosecution motion, it is even more rare to win it on mere motion papers. Generally, if a defendant makes a strong showing, that will trigger a court order that the government disclose evidence from its files that may document (or refute) the unconstitutional selectivity claim. Consequently, the defense concludes both that (a) the president’s role in demanding prosecution of a political critic despite the lack of incriminating evidence is blatant, egregious, and warrants dismissal with prejudice; and (b) the court must at a minimum grant Comey discovery regarding the government’s prosecutorial decisions.
The Trump Justice Department must respond to this motion by November 3 — a week from Monday.