As former FBI Director James Comey stares down a two-count federal indictment alleging he made a false statement to Congress and obstructed justice, the Department of Justice faces an uphill climb in securing a conviction.
Interim U.S. Attorney Lindsey Halligan of the Eastern District of Virginia is under pressure to move the prosecution forward against Comey’s formidable defense team, which has multiple ways to challenge the charges.
Halligan, a Trump ally and former insurance lawyer with no prosecutorial experience, is up against the possibility that Comey's lawyers will file requests to toss the case out. If Comey is unsuccessful and the case goes to trial, Halligan will then face a new hurdle: persuading a jury. Critics say President Donald Trump, Halligan and any others involved in the case could also see external repercussions for rushing to bring what they view as a flimsy, retributive indictment.
In terms of pre-trial efforts, several lawyers have speculated that Comey will argue to the court that his two charges should be dismissed on numerous grounds.
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Former U.S. Attorney Barb McQuade of Michigan told Fox News Digital one possibility is that Comey could argue the prosecution was selective.
"To prevail on a selective prosecution claim, the defendant must show not only that the prosecution was motivated by an improper purpose, but also that other similarly situated individuals were treated differently," McQuade said.
She said it would be "remarkably easy to demonstrate the first factor," pointing to Trump’s extraordinary comments on social media openly saying he wanted Comey charged out of vengeance. Comey, one of Trump’s top political nemeses, led the FBI when it opened a controversial investigation into Trump over his 2016 campaign’s alleged collusion with Russia.
McQuade said, however, that the second factor would be difficult to prove — that others have not been prosecuted for false statements to Congress — since that "essentially requires a defendant to prove a negative."
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Jim Trusty, a former DOJ prosecutor who once worked on Trump’s defense team, told Fox News the indictment is still in an early stage, the specific allegations remain unclear and that a "wait and see" approach was best. Trusty said, though, that critics who claim Trump is weaponizing the DOJ against his enemies are misguided.
"Lawfare was certainly used as a weapon to go after Trump, but it also protected people, and so you can also look at this as four years of love from the Biden administration kept Comey out of the crosshairs," Trusty said.
Trusty said Comey’s indictment could be perceived as a "tit for tat," or it could simply be "overdue."
McQuade said that at this early stage, she viewed Comey's acquittal as the "more likely" way the DOJ would fail, pointing to what she said was "convoluted" language in the indictment.
She said it seemed to rely on congressional testimony Comey gave in 2020, when Sen. Ted Cruz, R-Texas, referenced a question asked by Sen. Chuck Grassley, R-Iowa, in 2017 about whether Comey authorized a leak to the media. Cruz also slightly misquoted Grassley, she said.
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"Because the prosecution must show that Comey knowingly and willfully made a false statement, that messy record may be a fatal flaw," McQuade said.
Former U.S. Attorney John Fishwick of the Western District of Virginia told Fox News Digital that if the court permits Comey to access any records related to the DOJ’s "internal deliberations" about the case, those details could undermine the prosecution and bolster a defense that the case was tainted by political motivations.
"The biggest potential fallout for DOJ will be if the judge permits the Comey legal team to get under the hood of the internal deliberations of DOJ to prosecute or not prosecute Comey," Fishwick told Fox News Digital. "The Comey team wants to argue this prosecution is just about politics and revenge, but they will need as much evidence as possible to buttress this claim as DOJ will counter the grand jury indicted Comey, not DOJ."
Trump’s appointment of Halligan as U.S. attorney was a last-minute move, as the five-year statute of limitations on Comey’s testimony expired on Sept. 30. Trump ousted her predecessor, Erik Siebert, a 15-year veteran of the Virginia office, and brought in Halligan, a willing participant in Trump’s mission to take down his political rivals.
While Trump has suggested other indictments are coming down the pike, critics have zeroed in on Comey's case, calling it weak enough that Trump also risks impeachment over it and that Halligan and any other prosecutors who decide to join the case risk career penalties. No DOJ prosecutors have joined Halligan on the case at this stage.
Former DOJ official Harry Litman, host of "Talking Feds" and vocal Trump critic, said "some accountability" would come if Democrats take the House next year, advocating they impeach Trump for what he says is an abuse of power and obstruction of justice.
"If we can just get through the midterms and give the House of Representatives the power to subpoena all of these jokers on Capitol Hill, grill them and then impeach Trump again … all of the evidence of the crime that Donald Trump just committed will be laid out for public inspection," Litman said.
He also cited a report that career prosecutors advised Halligan against charging Comey, suggesting she faces the "possibility of serious professional sanctions" because of it.