WASHINGTON (AP) — The Justice Department on Monday urged a federal judge to reject James Comey’s claim that his prosecution amounts to political retaliation, arguing that the former FBI director has not shown he is being punished for his criticism of the Republican president.
Prosecutors defended President Donald Trump’s social media post in September demanding action in the Comey investigation, maintaining that it reflects a “legitimate procedural reason” and is not a basis for dismissing the indictment accusing Comey of lying to Congress in 2020.
The filing underscores how Trump’s comments have put the Justice Department in a difficult position as Comey and other defendants seize on the president’s comments in an effort to have their cases dismissed before trial. Comey’s lawyers told the judge last month that the charges should be dismissed because they were brought out of “personal grudge” at the president’s direction. A lawyer for New York Attorney General Letitia James, another Trump foe who has been charged in a mortgage fraud investigation, has signaled he will make a similar argument.
The Justice Department acknowledged that Trump’s social media posts reflect the president’s view that Comey “committed crimes that should be prosecuted” and “may even suggest that the president disfavors the defendant.” But, prosecutors argued, “there is no direct evidence of a vindictive motive.”
“The defendant tells a story that requires leaps of logic and a large dose of cynicism, then characterizes the president’s publication as a direct admission,” prosecutors wrote. “There is no direct admission of a discriminatory purpose. Rather, the only direct admission by the president is that Justice Department officials decided whether to prosecute, not him.”
The dispute concerns arguably the most closely watched of several impeachment challenges Comey has raised, with Comey’s lawyers citing not only Trump’s public demands to prosecute his perceived enemies but also his long-standing disdain for the former FBI director, whom he fired during his first term amid the investigation into Russian election interference.
Patrick Fitzgerald, a former federal prosecutor in Chicago and a longtime friend of Comey, has argued that Trump’s social media post calling on Attorney General Pam Bondi to prosecute Comey and other longtime enemies “constitutes a direct admission of a discriminatory purpose to single out a perceived political enemy.”
The defense is separately challenging the appointment of the White House aide who was hired as a federal prosecutor after the Trump administration ousted the head of the elite office handling the investigation.
The impeachment came days after Trump appointed Lindsey Halligan, a White House aide who had been one of Trump’s personal lawyers but had no prior experience as a federal prosecutor, as federal prosecutor for the Eastern District of Virginia, replacing Erik Siebert. Trump announced his support for Halligan a day after Siebert resigned as federal prosecutor amid pressure from the administration to charge Comey and James.
Comey’s lawyers last week asked to review transcripts and audio recordings of the grand jury proceedings in the case, saying factual and legal errors may have been presented to the grand jury that returned the indictment, which could justify dismissal of the charges.
The case accuses Comey of lying to the Senate Judiciary Committee on Sept. 30, 2020, in response to questions about whether he had authorized FBI leaks to members of the media.
The government filing features a litany of messages between Comey and Daniel Richman, a close friend and Columbia University law professor, intended to show that Richman interacted with reporters on Comey’s behalf and communicated the then-FBI director’s perspective on politically fraught issues, such as the bureau’s investigation during the 2016 presidential election into Democratic candidate Hillary Clinton’s use of a private email server as Secretary of State.
The filing notes that after Comey was fired, he asked Richman, who had also worked as an FBI special government employee, to share with a reporter the contents of a memo he had written documenting a one-on-one conversation Comey had with Trump.
Prosecutors, pointing to interactions with Richman, say Comey lied to the Senate panel about whether he had authorized disclosures about those investigations to journalists.
But Comey’s lawyers say the case should be dismissed because the questions Comey answered, from Sen. Ted Cruz, were so vague and ambiguous that it was impossible for Comey to have had the necessary intent to lie.
They point out, for example, that Cruz’s questions about whether Comey had given the green light to the media revelations did not mention Richman but instead referred to another individual, former FBI Deputy Director Andrew McCabe.
“In doing so, Senator Cruz never indicated that he wanted Mr. Comey to address the statements or activities of any person except Mr. McCabe,” Comey’s lawyers said.