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James Comey launches major efforts to have case thrown out

<i>Andrew Harnik/AP via CNN Newsource</i><br/>Former FBI director James Comey speaks during a Senate Intelligence Committee hearing on Capitol Hill
Andrew Harnik/AP via CNN Newsource
Former FBI director James Comey speaks during a Senate Intelligence Committee hearing on Capitol Hill

By Holmes Lybrand, Hannah Rabinowitz, Devan Cole, CNN

(CNN) — Former FBI Director James Comey launched two efforts Monday to have the federal charges he faces for allegedly lying during congressional testimony thrown out: one that claims his case is the result of a personal vendetta by President Donald Trump, and one that says the case​ is illegitimate.

The motions begin Comey’s official defense in the case brought by Trump’s Justice Department in late September. He has pleaded not guilty to the two charges he faces for lying and obstruction.

Comey’s attorneys argue that his case was “singled out” for prosecution because he has publicly criticized Trump, and Trump has made no secret of his hatred for Comey.

“Objective evidence establishes that President Trump directed the prosecution of Mr. Comey in retaliation for Mr. Comey’s public criticisms and to punish Mr. Comey because of personal spite,” Comey’s attorneys said in court documents.

The threshold for a judge to dismiss a criminal case because it was selectively or vindictively prosecuted is high. It requires defendants to prove in court that prosecutors held a certain animus towards them, which led to charges in a case that might otherwise not have been brought.

Comey’s attorneys said that the president himself had reached that threshold, citing a social media post from just before his indictment where Trump seemingly instructed Attorney General Pam Bondi to bring the charges.

“JUSTICE MUST BE SERVED, NOW!!!” Trump wrote.

Requests by defendants for their charges to be dropped based on a claim that they’re being unfairly targeted are rarely granted, but legal experts have said it’s possible judges could be more receptive to such efforts in cases like Comey’s given the bevy of public comments by Trump and other officials attacking people the Justice Department is criminally pursuing.

But those public statements alone may not be enough to convince US District Judge Michael Nachmanoff to throw out Comey’s case, and his attorneys are asking the judge to give them permission to pry into the Justice Department’s “prosecutorial decisions” around the former FBI director.

“Discovery would allow Mr. Comey to further confirm the extreme irregularities in this prosecution, including the determinations by career prosecutors that insufficient evidence exists to charge,” Comey’s lawyers wrote in their request.

Such court-ordered fact-finding is already underway in a separate high-profile case brought by Trump’s Justice Department this year. Attorneys for Kilmar Abrego Garcia, a Maryland man unlawfully deported to El Salvador earlier this year, have been permitted by the judge in his criminal case to look under DOJ’s hood as they, too, attempt to get his case dropped based on their claim of vindictive prosecution.

Disqualifying the US attorney

Comey also argued that the indictment against him “is fatally flawed” because Trump’s appointment of the interim US attorney who brought charges was entirely unlawful.

Trump appointed White House adviser Lindsey Halligan as the interim US attorney for the Eastern District of Virginia after the former interim US attorney was forced out of the position amid pressure to indict Comey and New York Attorney General Letitia James.

Comey’s attorneys argue that the former US attorney’s legally allotted 120-days to serve as interim before needing to be confirmed by the Senate had expired in May. The interim US Attorney, Erik Seibert, was allowed to remain in the position by the district judges in the Eastern District.

Halligan’s appointment, however, was not permitted by the judges and because the 120 days had already expired, so too had Trump’s ability to appoint an interim US attorney to the district, Comey’s attorneys argue.

“Here, the official who signed the indictment—and from all indications the sole official who presented the case to the grand jury—was defectively appointed to her office as an interim U.S. Attorney,” his attorneys wrote.

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