Legal analysts say former FBI Director James Comey's new filing exposed what could be a fatal flaw in the Justice Department's case against him after his new filing turned the tables on the government, accusing President Donald Trump’s administration of weaponizing the law to punish a political enemy.
Comey submitted a court filing alleging selective or vindictive prosecution after he was indicted for lying to Congress in the Eastern District of Virginia. In the 93-page filing, Comey walks through that not only has he been personally targeted by the administration, but they are charging him for a statement that he never made.
Legal experts and political analysts sifted through the specifics to point out not only the misquoting of Comey in the indictment but also a key document that analysts think the Justice Department was trying to hide.
"The indictment misstates the exchange between Sen [Ted] Cruz (R-TX) and Mr. Comey," the filing says, as national security expert Marcy Wheeler pointed out. "Senator Cruz asked Mr. Comey to affirm or deny prior testimony that he authorized 'someone else at the FBI to be an anonymous source in news reports about . . . the Clinton Administration.' But Hillary Clinton was not elected, and Senator Grassley's original questioning in 2017 related to the 'Clinton investigation.'"
Wheeler also pointed out a paragraph which she says "key to how Comey tries to get beyond the high bar on vindictive: the way Halligan was installed to prosecute him."
The filing cites the "'government has followed unusual discretionary procedures in deciding to prosecute,' those aberrant procedures provide strong evidence that the prosecution was brought for an imroper reason. ... Here, President Trump's 'enforcement procedure' — the eleventh-hour appointment of a political ally for the express purpose of prosecuting a longtime critic, accompanied by a social media post pushing the DOJ to indict—is decisive evidence that the government would not have prosecuted Mr. Comey but for his 'expression of ideas' that President Trump disliked."
Lawyer P. Andrew Torrez, who co-hosts the "Law and Chaos" podcast, referred to U.S. Attorney Lindsey Halligan as well, but specifically noted that Comey's filing includes the "appointment order." It's a document, he notes, "that the government has been trying to hide for weeks. I think it means Halligan is not long for this job and the Comey Tish [Letitia] James indictments not long for this world."
"Halligan was appointed pursuant to 28 USC 546, which authorizes the appointment of an 'Interim' US Attorney for 120 days," Torrez added. "Once those 120 days are up, the 'interim' lawyer is out & only the judges in the district can appoint someone to stay on the job."
This was the same problem that Trump had with Alina Habba in New Jersey. She appealed and was in court on Monday to argue that case.
He thinks that the Third Circuit Court of Appeals is about to rule against Habba. "If that's the case, the 120 days in the Eastern District of Virginia have LONG since expired. Erik Siebert was appointed as interim US Attorney on January 20, and his 120 days expired on May 21. The EDVa judges then invoked 546(d) to keep Siebert on the job. If Halligan wasn't validly appointed, then everything she's done has been ultra vires and void ab initio. That means the stuff she's done gets unwound."
The Atlantic's legal columnist Quinta Jurecic agreed with Torrez, "This strikes me as a potentially serious problem for the government!"
"Is [Attorney General Pam] Bondi that dumb?" asked national security lawyer Bradly P. Moss. "Did no one explain this to her when she signed the memo? The First Assistant was supposed to take over. Not Halligan."
Politico's Josh Gerstein referred to footnote seven that "Person 1 refers to Hillary Clinton and Person 3 refers to Daniel Richman." It was a conversation among legal analysts about who those individuals were in the grand jury indictment.