Former DOJ officials say Comey case is vindictive, call for dismissal

More than 100 former Justice Department officials urged a federal judge in Virginia on Monday to dismiss charges against former FBI director James B. Comey, arguing that the prosecution was fueled by political animus and not guided by legal standards.

The filing — known as an amicus brief — reflects a growing concern among former Justice Department officials that the Trump administration has jettisoned long-standing practices governing how and when prosecutors bring charges against people.

The brief to U.S. District Judge Michael Nachmanoff, who is presiding over the Comey case, was signed by former senior Justice Department officials across multiple Republican and Democratic administrations, including former Obama administration Attorney General Eric Holder, former Bush administration Acting Attorney general Peter Keisler and dozens of former U.S. attorneys across the country.

Quoting the late Supreme Court Justice Robert Jackson, the former officials say in their filing that prosecutors wield great power and discretion and that the long-standing norms and principles around prosecution are designed to ensure they don’t use that power improperly.

Justice Department principles say that “political association, activities, or beliefs” must not influence prosecutorial decisions, they note. The American Bar Association Model Rules of Professional Conduct, they add, say that prosecutors should not bring cases they know are not supported by probable cause. They are also expected to refrain “from making (or allowing others associated with the prosecutor to make) extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

James Pearce, a former longtime Justice Department attorney who worked on the special counsel team that prosecuted President Donald Trump, said that the details behind the Comey indictment warrant a judge granting the vindictive prosecution request.

“This looks like a picking out of a political enemy and prosecuting that person,” said Pearce, who was one of the attorneys who submitted the filing. “The brief makes clear that we are not advocating in any way a relaxation of the standards. The way that the vindictive prosecution doctrine is that it is extraordinarily hard to meet. And it is appropriately not granted to the majority of defendants who seek it.”

Comey, whom Trump fired as FBI director during his first term, was charged in Virginia last month with lying to Congress. He pleaded not guilty to the two charges.

Comey has also argued that the indictment amounts to a vindictive prosecution, asking Nachmanoff to dismiss the case. In a motion last week, attorneys for Comey cited a social media post, which Trump sent a few days before Comey was indicted, instructing Attorney General Pam Bondi to prosecute Comey and other perceived foes.

Comey’s attorneys recounted how career attorneys refused to bring the case to a grand jury because they didn’t think there was sufficient evidence, leading to multiple prosecutors being fired or pushed out, including Trump’s initial pick to be the top prosecutor in the Eastern District of Virginia, Erik S. Siebert.

The case was brought to a grand jury after Trump installed a loyalist with no prosecutorial experience, Lindsey Halligan, as the head of the Eastern District of Virginia.

The brief filed Monday by former Justice Department officials cited similar evidence and explained the history of the department and the role of unbiased prosecutors as it argued that the case against Comey should qualify as a vindictive prosecution.

“Taken together, the totality of these circumstances indicate that the indictment of this defendant was not an exercise of the evenhanded judgment of a disinterested prosecutor, acting free from personal bias, partisan animus, or divided loyalties — as is required by the Constitution and the Department of Justice’s formal policies,” the filing reads. “Instead, it represented an act of personal retribution by the President, acting through a United States Attorney whom he had recently selected.”

Amicus briefs are documents filed by parties not directly involved in a legal contest to inform judges of additional relevant information. They often don’t hold much sway with judges, but the former Justice Department officials said they hope the seniority of the people who signed this brief, and the breadth of experience they represent, will help persuade the judge that the case meets the high threshold needed to prove a vindictive prosecution.

“The goal on behalf on the amici here is to speak out and show how important this matter is and show some background knowledge on the department processes and norms,” said Samantha Bateman, a former Eastern District of Virginia prosecutor and criminal division official who left the department in March and was one of the attorneys who submitted the filing. “It appears that those venerable practices, policies and norms were not followed.”

Comey is accused of lying during a 2020 hearing before the Senate Judiciary Committee in response to a question from Sen. Ted Cruz (R-Texas), who asked whether Comey had ever authorized “someone else at the FBI” to be an anonymous source to the news media.

The indictment does not identify the person whom prosecutors accuse Comey of authorizing. In their filings, Comey’s attorneys accused the Justice Department of misstating whom Cruz was asking about.

Prosecutors have signaled they are basing their case on Comey’s decision to authorize Daniel Richman, a former prosecutor and professor at Columbia Law School, to convey information to the New York Times about Comey’s conversations with Trump in the early days of the president’s first term. Richman has said he shared information on those conversations with a Times reporter.

But at the Senate hearing, Comey’s lawyers note, Cruz referenced Comey’s former deputy FBI director, Andrew McCabe, who had publicly stated that he gave information to The Wall Street Journal in 2016 about an investigation into Hillary Clinton’s foundation and that he’d done so with Comey’s authorization.

Trump has argued that the two federal prosecutions against him — one accusing him of trying to overturn the 2020 election results and the other alleging he mishandled classified materials and obstructed officials’ efforts to retrieve them — were vindictive and that he was charged only because he was President Joe Biden’s political rival. Those requests to dismiss the case did not succeed, but Trump frequently derides the Justice Department under Biden as being corrupt and biased against him.