Justice Department Defends Comey’s Prosecution, Urges Judge Not to Throw Out Case

James Comey’s defense is using every means at its disposal to argue the case against the former FBI Director should be tossed out of court. This week his lawyers are making several arguments, including that the case against him is vindictive. The Justice Department defended his prosecution against those claims.

Prosecutors defended President Donald Trump’s September social media post demanding that action be taken in the Comey investigation, contending it reflects “legitimate prosecutorial motive” and is no basis to dismiss the indictment accusing Comey of lying to Congress in 2020…

The Justice Department acknowledged that Trump’s social media posts reflect the president’s view that Comey “committed crimes that should be met with prosecution” and “may even suggest that the President disfavors the defendant.” But, prosecutors argued, there is ”not direct evidence of a vindictive motive.”

“The defendant spins a tale that requires leaps of logic and a big dose of cynicism, then he calls the President’s post a direct admission,” prosecutors wrote. “There is no direct admission of discriminatory purpose. To the contrary, the only direct admission from the President is that DOJ officials decided whether to prosecute, not him.”

Comey’s defense is simultaneously arguing that his prosecution is improper because Lindsey Halligan’s appointment was unlawful. Prosecutors also rejected that claim.

…in a separate motion also filed Monday, Henry C. Whitaker, argued that interim US Attorney Halligan’s appointment was lawful and that the indictments against Comey, as well as a bank fraud case against New York Attorney General Letitia James, should both stand.

And even if there were a problem with Halligan’s appointment, Attorney General Pam Bondi “personally ratified the indictments to obviate any questions as to their validity.”

James and Comey both filed motions arguing that Halligan’s appointment was problematic because it wasn’t done with the advice of Congress and because Bondi had allegedly already used up her one appointment to that office when she put Erik Siebert in the interim position prior to Halligan.

If the judge doesn’t toss the case for these reasons, Comey has other complaints, including that his attorney-client privilege may have been violated.

The feds are seeking to install a so-called filter protocol, consisting of a team of prosecutors from another district to review Comey’s communications and parse which ones are covered by attorney-client privilege and which are fair game for the Virginia prosecutors to use as evidence in their case.

The feds say the filter protocol could reveal that Comey’s defense attorney, Patrick Fitzgerald, has a conflict of interest and should be booted from the case because he was purportedly involved in Comey’s alleged leaks of classified information to the media.

Meanwhile, Comey has suggested that prosecutors may have already violated his attorney-client privilege by viewing confidential correspondence between himself and his lawyers.

Underlying all of this is a two-count grand jury indictment accusing Comey of lying under oath when he denied back in 2020 that he had instructed an FBI agent to leak information to the media. With regard to that, prosecutors have put forward a 46-page documents which details Comey’s interactions with a friendly professor at Columbia who was used as a media source to get is message out to reporters at the NY Times.

…in April 2017, the defendant emailed Mr. Richman apparently regarding a lengthy article in The New York Times—in which Mr. Richman was a named source—regarding the Clinton email investigation (Midyear Exam).  See Gov. Ex. 8 (Apr. 23, 2017 email chain).  The defendant wrote that he had “read [t]he piece.  Thanks so much for your words and tell [Reporter 1] he did a good job.  Would be different if I wrote it but it is by and large fair.”  See id.  Mr. Richman replied: “You’re ever so welcome.  And will do re [Reporter 1].  Any badly or underdeveloped points for me to work on with the New Yorker? Or just the usual.”   

Consistent with the above-described correspondence, Richman corresponded extensively with members of the media regarding or on behalf of the defendant, including in an anonymous capacity…

Mr. Richman also corresponded with Reporter 1 via text message shortly after the defendant’s termination as FBI Director.  Over a period of days beginning on May 11, 2017, the pair texted: 

REPORTER 1:  And wanted to push you to push JBC.  My sense from his texts is that he wants this to spill. 

RICHMAN:  OK.  You text him and I will reach out too.  Just ask for the approx [date] and clearance for me to talk as anon source *** 

REPORTER 1:  When you reach out to him tell him that you just need for him to allow you to talk. work your magic  *** 

REPORTER 1:  This is the message I sent him [the defendant]  

REPORTER 1:  I don’t want to bother you as I wait to hopefully learn more about this tease.  I do think you deserve to be left to catch your breath but we’re at too important a time in the story and the country’s history for me to leave you alone.  I have to try and throw everything I can against the wall.  Questions of your unwillingness to give the president your loyalty are already out there.  You don’t even need to talk to me.  Just give Richman green light to tell me about dinner.  That’s all..  *** 

RICHMAN:  Just got goahead [sic].  See my email  *** 

RICHMAN:  A source close to jim is now telling you that jim very much looks forward to giving public testimony before congress (vs the closed testimony sought next week) 

Speaking of the NY Times, they have a story up arguing that all of this isn’t relevant to the two counts against Comey.

The filing, in Federal District Court in Alexandria, Va., was styled as a rebuttal of Mr. Comey’s claims that the charges he is facing should be thrown out as an act of vindictive prosecution by the Trump administration…

Even though they were supposed to be addressing the question of vindictiveness, the prosecutors filled the opening pages of their filing with quotations from personal emails and texts messages between Mr. Comey and Mr. Richman, as well those between Mr. Richman and reporters.

While those communications could ultimately help prosecutors prove that Mr. Comey used Mr. Richman to communicate to the news media, it remained unclear what bearing they had on the specific charges in the case: namely, whether Mr. Comey was lying when he denied authorizing an F.B.I. employee to anonymously share information for news reports.

Prosecutors have not made clear what new reports they were referring to or which reporters may have worked on them.

So we’ll have to wait and see if a judge allows the case to move forward and if so whether the information in the filing is considered relevant to the two counts against Comey. Stay tuned as we may know more tomorrow.

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