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“Let’s have a trial,” declared James Comey, preening like a peacock in front of a camera when he first learned of his indictment by a Virginia grand jury on charges of making false statements and obstruction of a congressional hearing.
Cardinal Comey’s bravado was a staged drama to satiate his eternal quest for sainthood. In truth, a trial is not at all what he wants. That became abundantly clear in court on Tuesday, moments after the disgraced former FBI Director formally entered a “not guilty” plea.
His lawyers immediately notified the judge that they would endeavor to prevent a trial entirely by filing motions to have the case dismissed. They will allege selective and vindictive prosecution, grand jury abuse and outrageous government conduct.
COMEY PLEADS NOT GUILTY IN COURT AFTER INDICTMENT ON ALLEGED FALSE STATEMENTS, OBSTRUCTION
Their aim is to put President Donald Trump on trial to avoid Comey’s trial, which is currently scheduled to commence in early January. It’s an undisguised legal maneuver to paint Trump as the pernicious villain while depicting Comey as the innocent victim.
That twisted portrayal is worthy of a Shakespearean farce, given the defendant’s long list of lawless schemes, unconscionable deceptions, and flagrant abuses of power that should have landed him behind bars years ago.
And spare me the moral outrage over weaponization of the law. Comey invented it by shamelessly launching the first lawfare crusade against Trump. His personal animus drove the perverted Russia hoax.
But Comey’s legal gambit to scuttle his own trial should not be taken lightly. Why?
Comey’s team of lawyers will be making their pitch in front of a friendly umpire. District Judge Michael S. Nachmanoff was appointed to the federal bench by President Joe Biden, whose Department of Justice (DOJ) ran interference for Comey and others by ignoring a plethora of corrupt acts that are now barred by the statute of limitations.
HOW JAMES COMEY’S INDICTMENT COULD GO SOUTH FOR THE DOJ
In a politically fraught case, the political leanings of the presiding judge matter.
Here, the defense will argue that the case should be tossed because Trump pressured government lawyers to bring a politically motivated prosecution against his nemesis, Comey. The president sacked a reluctant U.S. Attorney and installed his former personal lawyer, Lindsey Halligan, who obtained the indictment from a grand jury.
Trump’s searing criticism of Comey was richly deserved and is a matter of public record. But it does not mean, as a matter of law, that such a person is shielded from criminal prosecution.
In the spirit of fairness, let’s compare.
Biden constantly denounced Trump as a “threat to democracy,” and Joe’s dirty fingerprints were all over the double indictments brought by Special Counsel Jack Smith. As first reported by the New York Times in April of 2022, Biden let it be known that he wanted Trump prosecuted. Pressure was promptly applied on his Attorney General, Merrick Garland, to get it done.
That was not an isolated incident. Readers of political history know that other past presidents took active roles in DOJ decision-making. Notably, President John F. Kennedy conferred closely with his brother, Attorney General Robert F. Kennedy, on prosecutorial objectives and even targets, some of whom were regarded as his political enemies.
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Scholars have long debated whether presidents can instruct the DOJ or their U.S. Attorneys what to do. However, under Article II of the Constitution, the president holds ultimate authority over all executive branch departments, including the Justice Department. Directing prosecuting decisions is a part of his inherent powers.
Not exercising that plenary authority in deference to prosecutorial independence is a choice, not a legal or constitutional requirement. If a U.S. Attorney disagrees that probable cause exists for an indictment, he or she may demur on ethical grounds. But a president is then free to name a replacement who has a different opinion and harbors no such objection.
Back to Comey. To avoid the trial he insists he wants, his attorneys will assert a variety of different claims leveled squarely at Trump. The defense briefs will be voluminous. So, for now, let’s examine the most obvious one, selective prosecution.
Comey must convince Judge Nachmanoff that the case against him was driven by an unjustifiable motive, thereby discriminating against him. Moreover, Comey must overcome with clear evidence what is known as the “presumption of regularity,” which assumes that prosecutors are discharging their duties properly.
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It is typically an uphill climb because the burden of proof shifts to the defendant.
This is where the merits of the charges come into play. Are they justified? The indictment alleges that Comey lied and obstructed Congress. OK. But how compelling is the evidence, and how strong are the witnesses against him? Who are those witnesses? What exactly was the false statement and in what context was it given?
The unsatisfying answer is… we do not know. The indictment itself tells us very little.
It reveals only that Comey knowingly made a materially false statement to a U.S. senator during a Judiciary Committee hearing that he, Comey, had not authorized someone else (“PERSON 3”) at the FBI to be an anonymous source in news reports regarding an FBI investigation concerning “PERSON 1.” The purported lie had the effect of obstructing the Committee’s investigation.
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At this early stage, the identities of person 1 and person 2 are a mystery, as well as the recipients of the news reports. We can speculate, but we have no idea the precise statement made by Comey that was allegedly false or what contradictory and incriminating evidence prosecutors have in their possession.
Absent that critical information, no one can competently assess the strength or weakness of the case. This means we can’t possibly determine whether the indictment was driven by an unjustifiable motive and, hence, constitutes selective prosecution. A grand jury felt it was justified because it found probable cause to believe that Comey committed crimes.
On Tuesday, Comey’s lawyers informed the judge that they would seek a “bill of particulars” to acquire more specific facts. Those details, no doubt, will be forthcoming. Until then, those who assert with confidence that there is no credible case against Comey are only guessing.
In the meantime, don’t believe the self-righteous and vainglorious Comey when he insists “let’s have a trial.” That is a typical pretense for which he is notorious.
Comey will fight like hell to dodge his own trial.
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