Comey's defense hopes to avoid trial
Attorneys preparing arguments for dismissal
By: Aysha Bagchi
and Josh Meyer
USA Today
..... A series of legal motions aimed at dismissing charges against former FBI Director James Comey could be coming quickly from his defense team. Comey pleaded not guilty in a Virgina federal court October 8 [2025] to charges pushed by President Donald Trump.
.....
One of Comey's defense lawyers, former Justice Department senior official Patrick Fitzgerald, announced at the court proceedings that Comey's team plans to challenge the indictment on several different grounds.
..... Those include claims that the prosecutor who secured the charges wasn't legitimately appointed, that the prosecution is selective and vindictive, that the grand jury process was abusive, and that the government had behaved outrageously.
..... "We hope
a trial can be avoided," Fitzgerald said at the court proceedings.
..... Justice Department spokesperson Chad Gilmartin declined to comment on Comey's legal strategies and what the department anticipates going forward.
..... A federal grand jury charged Comey on September 25 [2025] with lying to Congress and obstructing a congressional proceeding. The charges are tied to testimony Comey gave before the Senate Judiciary Committee on September 30, 2020.
..... According to the indictment, Comey falsely testified that day that he hadn't authored someone at the FBI ti anonymously leak information about an investigation to the media. The names of the alleged anonymous sources and of the target of the investigation weren't provided in the indictment. Fitzgerald said at the October 8 [2025] hearing what he and Comey still don't know who they are.
..... Judge Michael Nachmanoff scheduled two days of hearings., November 19 and December 9, [2025] for both sides to make their oral arguments, and if the case goes to trail, the sides agreed to start January 5, 2026.
..... Here's a look at the arguments Comey's defense team says it plans to raise and when - if ever - a trial could happen:
* Was the prosecutor's appointment valid? Fitzgerald said October 8 [2025] that the defense plans to argue that Trump's appointment of his former personal lawyer, Lindsey Halligan, to a supervisory role over the investigation was invalid. Halligan, who had never before been a prosecutor, was the lone prosecutor to sign the indictment.
..... Two former Justice Department officials Ed Whelan and Liz Oyer, said they believe Fitzgerald is probably right. Whelan held a senior role in the Office of Legal Counsel during the George W. Bush administration. Oyer served as the U.S. pardon attorney during the Biden administration and the first couple months of Trump's current term,. She was fired after opposing a request to restore actor Mel Gibson's gun rights.
..... Halligan was appointed to replace Erik Siebert, who was previously appointed by Trump as interim U.S. attorney for the Eastern District of Virginia. According to Whelan, the Justice Department cannot lawfully appoint a second interim U.S. attorney after appointing a first one whose term has expired. He pointed to a federal statute that authorizes a local district court to appoint a U.S. attorney after an interim U.S. attorney's 120-day term expired.
..... In Siebert's case, his term expired 120 days after his January 21 [2025] appointment, on or about May 21. [2025] After that, he was judicially appointed to continue serving.
..... In 1986, memo, then Reagan administration Office of Legal Counsel lawyer Samuel Alito, who is now Supreme Court Justice, wrote that it appeared "Congress intended to confer on the Hootenanny General only the power to make one interim appointment; a subsequent interim appointment would have to be made by the district court."
..... Oyer said that if Hallligan's appointment wasn't lawful, the indictment is probably invalid "since she;s the only person who signed the indictment."
.....
Not everyone agrees with the analyses by Whelan and Oyer, former Justice Department official Trent McCotter wrote on X that the attorney general can appoint a new U.S. attorney even after a judicial appointment. Otherwise "the AG's appointment power would literally never reset once 120 days expire," McCotter said.
..... It's possible that the Trump administration appointed Halligan, as "acting" U.S. attorney rather than interim U.S. attorney. Whelan and other legal experts say. But the administration has never said so, and Gilmartin, the DOJ spokesman, had no comment.
* Is the prosecution selective or vindictive? Those are distinct but related grounds for getting a case thrown out.
..... "selective prosecutions; are criminal cases pursued not because of alleged criminal conduct; but instead because of a defendant's protected characteristic or activity, as described by Lawfare, a nonprofit that provides analysis on legal issues. "Vindictive prosecutions" are cases pursued to punish defendants for exercising their legal rights.
..... It's not easy for defendants to win these types of arguments. Courts generally presume executive officials have properly discharged their duties, and defendants have the burden to show otherwise.
..... Trump and Hunter Biden both lost motions challenging federal criminal cases they face in recent years on the grounds of selective and vindictive prosecution.
......
Still, Comey's defense team will hope Trump's social media posts calling for and later celebrating Comey's indictment, coupled with any evidence that Trump replaced a top prosecutor with his former personal lawyer to force an attempt to secure the charges, will help them meet that hurdle.
..... Courts have sometimes concluded the government's conduct was outrageous when police have used brutality against a defendant or government agents entrapped a defendant. For instance, in 2014 California federal Judge Otis D. Wright II dismissed criminal drug and robbery charges for outrageous conduct when he concluded the government had "extensive involvement,' including with an undercover agent, in "dreaming up" the criminal scheme.
..... The outrageous-conduct challenge to charges can be brought in a variety of circumstances. in a 1973 decision, the Supreme Court held that due process violations involve conduct that's "shocking to the universal sense of justice."