Attorneys for James Comey previously filed a Motion on Vindictive and Selective Prosecution (see here). Looking at the defense motions, it looked like emails and texts may be strong evidence for the defense. The government has now responded with a long response, especially in comparison to their skimpy Indictment (see here). The response looks like the government is concerned about the arguments made by the defense as this 48-page response is very detailed just on the selective and vindictive motion and it also contains 14 attachments, including a display of their supposed evidence. Page 21 of the government’s motion includes the President’s social media posting:
“Pam: I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.” Then we almost put in a Democrat supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so. Lindsey Halligan is a really good lawyer, and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT”
The Government first argues that “[t]he defendant’s argument relies on the imputed-animus theory.” They state, “The defendant’s evidence that the U.S. Attorney ‘failed to act independently’ is pure speculation.” They next argue that “[s]hould the Court decide that it needs to consider the President’s alleged animus, the defendant has not carried his burden to present ‘direct evidence’ that the President harbors animus in the relevant sense.” The government states, “The defendant primarily cites the President’s social-media posts. These posts reflect the President’s view that the defendant has committed crimes that should be met with prosecution. They may even suggest that the President disfavors the defendant. But they are not direct evidence of a vindictive motive.”
There is a good bit more to discuss from this government motion, but let’s first see if, and how, the defense responds.
It is without doubt, as noted by the government, that the defense typically has an uphill battle when claiming selective and vindictive prosecution. But the government’s claim that there should be a denial of discovery given to the defense on their motion is concerning. The government has managed to acquire items for its case (one need only look at their many exhibits) — shouldn’t the defense have an equal ability to obtain evidence to support its claim of this being a vindictive prosecution? Yes, the Armstrong case sets a high bar, but to argue that the defense presents no direct evidence and then say that they should not be allowed discovery to obtain evidence has been an annoying Catch 22 that needs to end – especially here.
The government’s final words concerning the remedy is that “[s]hould the Court find the indictment was unconstitutionally vindictive or selective, the appropriate remedy would be a dismissal without prejudice.” 48 page response, 14 exhibit attachments – is this standard language with a selective/vindictive motion, or is the government nervous?
(esp)