Former FBI Director James Comey leaves federal court in Alexandria, Virginia, after pleading not guilty to obstruction and false statement charges Image credit: The Guardian.
(The Post News) – Former FBI Director James Comey has launched an aggressive legal battle to derail the federal criminal charge against him, not only dismissing the charges but also the jurisdiction of the prosecutor who filed them.
Comey, who on Oct. 8 pleaded not guilty to two charges of lying to Congress and interfering with a congressional proceeding, faces 10 years in prison if convicted. The indictment is the result of his September 2020 testimony to the Senate Judiciary Committee, where prosecutors alleged he lied when he testified that he did not direct the leaking of details of an FBI investigation to the news media.
At Wednesday’s hearing, Comey’s attorney Patrick Fitzgerald unveiled a general game plan to get the indictment thrown out on a number of constitutional and procedural grounds. Fitzgerald’s office will argue, he said, that the case is tainted by selective and vindictive prosecution, grand jury abuse, and “outrageous government conduct.” Most importantly, they will challenge the authority of interim U.S. Attorney Lindsey Halligan, who was appointed by Trump and procured the indictment personally.
We believe that a trial can be avoided,” Fitzgerald said in court.
Challenge to Prosecutor’s Authority
The linchpin of Comey’s defence is that Halligan’s appointment as U.S. Attorney for the District of Virginia was illegal. Halligan, a former White House staff secretary and Trump’s personal attorney, was installed merely days before the indictment was brought, replacing Erik Siebert, who had resigned after he allegedly resisted pressure from Trump to indict other political opponents.
Legal experts say the case may hinge on the Federal Vacancies Reform Act, which places a limit on how long acting prosecutors can serve in office. Ed Whelan, who used to be a Justice Department staffer, and Liz Oyer, a former U.S. pardon attorney, both argue that Halligan’s appointment likely violated federal law because a second acting appointment cannot be made after the first one expires without judicial approval.
If her own appointment is invalid, so is her indictment of Comey,” wrote Whelan in the National Review.
Other experts in law, including Trent McCotter, have disagreed, insisting that the Attorney General remains empowered to appoint fresh acting prosecutors even beyond the end of a previous term.
Judge Michael Nachmanoff has scheduled two hearings on Nov. 19 and Dec. 9, to hear arguments about Halligan’s appointment and other motions to dismiss. He tentatively scheduled the trial for Jan. 5, 2026, but both sides estimated that it would only take two or three days.
Comey’s defence will also claim the charges were politically motivated, pointing out that Trump publicly called for Comey’s indictment and ultimately applauded it on social media. The defence will also argue that Halligan’s appointment was part of a trend of indicting Trump’s opponents with improperly appointed prosecutors.
Courts are reluctant to grant motions to dismiss based on grounds of selective or vindictive prosecution, but Comey’s lawyers hope the public statements made by Trump and direct communication between Halligan and the then-president provide leverage for their case.
“This is about fairness, not politics,” Fitzgerald told reporters outside the courthouse. “The evidence will show that this prosecution was intended to punish a political adversary.”
Fitzgerald also protested grand jury abuse, theorizing that compromised evidence or fraudulent testimony might have influenced the indictment. He also threatened to move for “outrageous government conduct,” alleging the government’s actions violated Comey’s constitutional right to due process.
Judges have rarely dismissed indictments on such a basis, but Fitzgerald cited cases, including a 2014 California case where charges were dropped after a judge ruled undercover agents had “dreamed up” a criminal plot.
Comey’s Case
Comey was fired as head of the FBI in 2017, four months into Trump’s presidency, while he was in charge of the investigation of Russian interference in the 2016 election. He has since emerged as a prominent Trump critic, alleging that Trump is tearing down democratic norms.
Prosecutors charge Comey with lying to Congress about his approval of leaks during that same investigation. In court, Comey was calm, surrounded by his wife and daughter, federal prosecutor Maureen Comey, just recently let go by the Trump administration.
“On both counts, I do, your honour. Thank you very much,” Comey responded when asked if he had a grasp of the charges.
Judge Nachmanoff told both sides that delays will not be tolerated:
“I am not going to hold up this case because the government is not turning things over in a timely manner,” he warned.
The Comey case is part of a string of judicial challenges to prosecutors installed by President Trump without Senate confirmation. Challenges in New Jersey, Nevada, and California led judges to unseat illegally installed U.S. attorneys but allow indictments to stand.
If Comey’s office succeeds in disqualifying Halligan, the Justice Department would be free to refile charges before another prosecutor, though one that would further delay proceedings and stoke allegations of political meddling.
In a statement posted on the internet after his indictment, Comey was defiant in tone:
“My family and I have years ago understood that there is a cost to defy Donald Trump. We shall not survive on our knees. I am innocent, so let us go to trial.”
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