“It’s a better case for Comey, because the president won’t shut up, and that’s admissible," said retired federal Judge John Jones. "So he’s got a fighting chance, I think, on vindictive prosecution.”
Trump has also identified New York Attorney General Letitia James and Sen. Adam Schiff (D-CA) as possible targets for prosecution, and senior DOJ officials are advocating charges against former national security adviser-turned-Trump critic John Bolton. Those public statements could eventually help them persuade judges to drop their cases.
“It’s clearly vindictive," said former federal Judge Shira Scheindlin. "It’s clearly his enemies list."
“He’s made it so obvious that he’s targeting them, regardless of the evidence, that I do think a judge would be far more receptive to probably both concepts, selective prosecution and vindictive,” Scheindlin added.
Selective prosecution claims usually go nowhere because prosecutors are given broad discretion in charging decisions, but the president is providing strong evidence that the government has singled out his enemies for their political positions.
“You’ve really got to prove bad motives on the part of the prosecution – that they’re really coming at you for some completely improper reason," said former federal prosecutor Randall Eliason.
Comey could argue that his prosecution was selective in hopes of getting his case dismissed, but Scheindlin said that strategy could prove perilous.
“That’s like admitting that, yeah, you did it, but how come the other 10 guys who did it aren’t being charged?” she said. “So a defense lawyer for somebody as high-profile as Comey I don’t think is going to want to make that argument that, ‘Well, I might have lied, but everybody else lies, too.’”
Experts suggested that Comey should request a dismissal by arguing that he was being vindictively prosecuted, using Trump's public grievances against him as evidence.
“You see the animus,” Jones said. “What else do you need? It’s a great test case to kind of examine the contours of a true vindictive prosecution claim – you know, ‘I got indicted because the president United States doesn’t like me and wanted me to be indicted.’”
Comey and other Trump targets could also point to the president forcing out Erik Siebert as U.S. attorney for the Eastern District of Virginia after he refused to bring charges against James and questioned the case against Comey before replacing him with White House aide Lindsey Halligan.
“They’re picking their guy and then trying to find something they can charge him with, versus investigating these facts on the law and deciding whether charges are appropriate,” Eliason said. “The whole flip-flop thing and picking a new U.S. attorney who will do what the former U.S. attorney won’t, I mean, that sets off all kinds of red flags.”
