Lawyers for James Comey and Letitia James have asked a federal judge to dismiss a criminal case brought against them alleging that President Donald Trump’s administration illegally appointed the prosecutors they accused.
On Thursday, U.S. District Judge Cameron McGowan Curry heard the defendants’ petition in Alexandria, Virginia, as they seek to have the case thrown out before it reaches trial.
Recommended stories
list of 3 itemsend of list
Both Mr. Comey and Mr. James are considered prominent critics of President Trump and have argued that the charges against them are a form of political retribution.
Thursday’s petition concerned U.S. Attorney Lindsey Harrigan’s role in the two indictments.
Harrigan, an insurance lawyer who was part of Trump’s personal legal team, was appointed interim U.S. attorney for the Eastern District of Virginia.
The U.S. attorney is the district’s top federal prosecutor, and candidates must first be confirmed by the Senate in order to be appointed permanently.
However, Harrigan took the position under unusual circumstances. Her predecessor, Eric Siebert, was forced to resign in September under pressure from President Trump.
The interim U.S. attorney will only serve for 120 days, after which a federal judge will decide who remains in the position. Siebert had that approval. Harrigan wasn’t like that. Instead, it was the Justice Department that appointed Harrigan to the position of interim U.S. attorney.
Therefore, lawyers for Mr. Comey and Mr. James argued that Mr. Harrigan’s appointment as U.S. attorney was invalid.
Ephraim McDowell, one of Mr. Comey’s lawyers, said Thursday that “the important question is whether Ms. Harrigan made adequate promises when she appeared before the grand jury, and she did not do so.”
But the Justice Department argued that the law does not preclude consecutive appointments of interim U.S. attorneys and that ambiguity on the issue does not invalidate Harrigan’s prosecution.
Henry Whitaker, a Justice Department attorney, said the concerns were at best a “documentary error” and not a reason to dismiss the charges.
Harrigan’s appointment in September coincided with a series of indictments against President Trump’s rivals and critics, including James, the former FBI director and New York attorney general.
Comey was indicted on September 25 on charges of lying and filibustering Congress. The case against him centers on whether he lied to senators in 2020 testimony regarding the FBI’s investigation into allegations of Russian election interference in 2016.
Mr. Comey has pleaded not guilty to the charges.
New York State Attorney General Letitia James similarly denied any wrongdoing in her case. On October 9, she was indicted on one count of bank fraud and one count of making a false statement to a financial institution, both of which carry a maximum sentence of 30 years in prison.
A third Trump critic, former national security adviser John Bolton, was also indicted on October 16 on charges related to alleged mishandling of classified documents. He also maintains his innocence.
Bolton did not participate in Thursday’s court hearing.
Lawyers for Mr. Bolton, Mr. Comey and Mr. James each argued that prosecutors were waging an unwarranted vendetta and were motivated by the president’s personal vendetta against his clients.
President Trump publicly called for the indictment of Comey and James in September, accusing the Justice Department of “talk but no action” in a Truth Social post addressed to Attorney General Pam Bondi.
“What will happen to Comey, Adam Shifty Schiff and Letizia? They are all extremely guilty and nothing will be done,” he wrote on September 20th.
While he praised Harrigan, he criticized Siebert for not filing a lawsuit against James and Comey.
“We have a great case, and many lawyers and legal experts say so,” Trump wrote. “We cannot delay it any longer. This will damage our reputation and credibility.”
At Thursday’s hearing, Curry did not immediately issue a ruling from the bench, but said he expected to make a decision by Thanksgiving.
But Curry expressed skepticism about the Justice Department’s lawsuit.
She told the court that a complete record of the grand jury proceedings that led to Comey’s indictment was not provided.
The judge also pointed out that for part of the day of Comey’s indictment (from 4:28 p.m. local time until the indictment was returned), “no court reporter was present” to take notes on the proceedings.
That leaves a gap in the record of grand jury activity, Curry explained.
He noted that it also creates a dilemma with one of the Justice Department’s claims that Attorney General Bondy, along with Harrigan, authorized the indictment of Comey.
“It becomes clear that the attorney general was unable to review the missing sections of the transcript,” Curry said.
In a separate complaint (PDF) earlier this week, the watchdog group Campaign for Accountability asked state attorneys’ offices in Florida and Virginia to investigate Harrigan for possible professional conduct violations.
“Mr. Harrigan’s conduct appears to be an abuse of power, undermines the integrity of the Department of Justice (DOJ), and undermines public confidence in the legal profession and the fair administration of justice,” the group said in its complaint.
The accountability movement pointed out that while Mr. Siebert refused to indict Mr. Comey and Mr. James, Mr. Harrigan went ahead with the charges despite a lack of evidence.
It also pointed to irregularities in the way she obtained the indictment from the grand jury involved.
“In violation of custom, no career prosecutors from the U.S. Department of Justice participated, and only 14 of the 23 grand jurors who heard the presentation voted to indict Mr. Comey,” the complaint states.
Mr. Halligan accused Mr. Comey and Mr. James of appearing to have “made false statements of material fact to both the grand jury and the district court” in both cases.
“The evidence appears to show that without President Trump’s intervention, neither Mr. Comey nor Mr. James would have been indicted.”
