Justice Department defends Trump's post as it urges judge to reject Comey's effort to dismiss case

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WASHINGTON (AP) — The Justice Department urged a federal judge Monday to reject James Comey’s claim that his prosecution amounts to political retribution, arguing the former FBI director has failed to show that he’s being targeted as punishment for his criticism of the Republican president.

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 filing underscores how Trump's comments have put the Justice Department in a difficult position as Comey and other defendants seize on the president's remarks in efforts to have their cases dismissed ahead of trial. Comey’s lawyers told the judge last month that the charges must be thrown out because they were brought out of “personal spite” at the direction of the president. A lawyer for New York Attorney General Letitia James, another Trump foe who's been charged in a mortgage fraud investigation, has signaled that he will make a similar argument.

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.”

The dispute concerns arguably the most closely watched of several challenges Comey has brought over the indictment, with Comey's attorneys citing not only Trump's public demands for prosecutions of his perceived enemies but also his longtime disdain for the former FBI director, whom he fired during his first term amid the Russia election interference investigation.

Patrick Fitzgerald, the former U.S. attorney in Chicago and a longtime Comey friend, has argued that Trump’s social media post calling on Attorney General Pam Bondi to prosecute Comey and other longtime foes “constitutes a direct admission of discriminatory purpose to single out a perceived political enemy.”

The defense is separately challenging the appointment of the White House aide who was brought in as U.S. attorney after the head of the elite office handling the investigation was pushed out by the Trump administration.

The indictment came days after Trump installed Lindsey Halligan, a White House aide who had been one of Trump’s personal lawyers but had no prior experience as a federal prosecutor, as the U.S. attorney for the Eastern District of Virginia to replace Erik Siebert. Trump announced his support for Halligan one day after Siebert resigned as U.S. attorney amid administration pressure to charge Comey and James.

Comey’s lawyers last week asked to review transcripts and audio recordings of grand jury proceedings in the case, saying factual and legal errors may have been presented to the grand jury that returned the indictment, which could warrant the charges being thrown out.

The case accuses Comey of lying to the Senate Judiciary Committee on Sept. 30, 2020, in response to questions about whether he had authorized FBI leaks to members of the news media.

The government’s filing lays out a litany of messages between Comey and Daniel Richman, a close friend and Columbia University law professor, meant to show that Richman engaged with reporters on Comey's behalf and communicated the then-FBI director's perspective on politically fraught issues such as the bureau's investigation during the 2016 presidential election into Democratic nominee Hillary Clinton's use of a private email server as Secretary of State.

The filing notes that after Comey was fired, he asked Richman — who had also served as an FBI special government employee — to share with a reporter the contents of a memorandum he had written documenting a one-on-one conversation Comey had with Trump.

Prosecutors, pointing to the interactions with Richman, say Comey lied to the Senate panel about whether he had authorized disclosures about those investigations to reporters.

But Comey’s lawyers say the case must be dismissed because the questions Comey responded to, from Sen. Ted Cruz, were so vague and ambiguous that it was impossible for Comey to have had the necessary intent to lie.

They note, for instance, that the windup to Cruz’s questions about whether Comey had given the green light for news media disclosures did not mention Richman but were instead about another individual, former FBI Deputy Director Andrew McCabe.

“In doing so, Senator Cruz never indicated that he wanted Mr. Comey to address the statements or activities of any person except for Mr. McCabe,” Comey's lawyers said.