As anticipated (here), attorneys for James Comey filed Motions to Dismiss the Indictment premised on selective and vindictive prosecution (here) and on the improper appointment of the U.S. Attorney (here). The latter Motion can be summed up with their presented argument that “[t]he President and Attorney General appointed the President’s personal lawyer as interim U.S. Attorney in violation of a clear statutory command so that the interim U.S. Attorney could indict an outspoken critic of the President just days before the relevant statute of limitations was set to expire. Only a dismissal with prejudice is sufficient to address and deter the Executive Branch’s willfully unlawful conduct in this case.”
The Motion on Selective and Vindictive prosecution is an interesting one and one that may provide for a very telling hearing. The defense has an extremely high legal burden to support claims of selective and vindictive prosecution. But as noted in the Motion filed by the accused, the facts here are particularly strong. Some of the arguments are likely to include: 1) the initial U.S. Attorney found no probable cause; 2) it is stated that “[n]o career prosecutor would carry out those orders;” 3) the President put out a message to the U.S. Attorney General that this (indictment) needs to happen; 4) the President has a “hand-picked interim U.S. Attorney”; 5) the Indictment happens shortly after the appointment of the “hand-picked interim U.S. Attorney”; 5) the President had fired former FBI Director Comey; 6) a prior investigation (Arctic Haze) into the allegations by the government “concluded that there was not ‘sufficient evidence to criminally charge any person, including Comey;’” 7) there is no allegation of new evidence received different from this initial investigation; 8) the President sent a “thank you” on social media for proceeding with this indictment; 9) the Durham Report also “did not find that Mr. Comey or any other senior FBI personnel violated any federal criminal statutes;” and 10) the timing of the Indictment against Comey on the heels of the appointment of the interim U.S. Attorney is also telling. Potential arguments by the government that the timing was in part because of the statute of limitations soon running on their being able to bring this action, actually assists the defense in that it shows the failure to indict for a significant amount of time. The defense may be arguing that if there is no new evidence, why did it take them so long?
Government success in white collar cases is often because of emails, tweets, text messages, and other forms of social media. But these items are usually being used against the accused. What is unique in this case is that social media may prove more helpful for the defense.
See also Sara Kropf – Will Jim Comey Demand a Fast Trial? Here’s Why the Speedy Trial Act Could Be His Best Move
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