James Comey’s Lawyers Try Novel Strategy To Dismiss the Case: Cite Judge Who Tossed Jack Smith’s Case Against Trump

A former director of the FBI, James Comey, appears to have found a new and unlikely ally in his quest to dismiss the criminal charges filed against him — Judge Aileen Cannon.Judge Cannon, appointed by President Trump in 2020, presided over Special Counsel Jack Smith’s prosecution of the 45th president for the storage of classified documents at Mar-a-Lago. She proved to be a skeptic of the government’s case and a champion of presidential prerogative, and even appointed a chaperone to oversee the collection of evidence from the Palm Beach mansion.The jurist dealt a knockout blow to the prosecution when she ruled that Mr. Smith was unlawfully appointed by Attorney General Merrick Garland. Mr. Smith, who was prosecuting war crimes at the Hague when he was hired by the Department of Justice, was never confirmed by the Senate. Judge Cannon also found that Mr. Smith was exercising vast prosecutorial powers without statutory authority. She dismissed all of the charges in the case. Mr. Trump has called her “strong” and “brilliant.”Now, Mr. Comey, who faces charges of lying to Congress and obstruction, is maneuvering to oust the prosecutor building the case against him — the interim United States attorney for the Eastern District of Virginia, Lindsey Halligan. Mr. Comey’s lawyers claim that Ms. Halligan was “defectively” installed and that the United States “cannot charge, maintain, and prosecute a case through an official who has no entitlement to exercise governmental authority.”Mr. Comey wants the charges against him dismissed “with prejudice,” meaning that they cannot be refiled. He argues that “any lesser remedy would be insufficient in light of the government’s flagrant misconduct and the need to deter the government from bringing further unconstitutional prosecutions.” Mr. Comey calls the case a “nullity” because of the “unlawful installation of Ms. Halligan as interim U.S. Attorney.”The argument for the disqualification of Ms. Halligan centers on how she came to her prosecutorial post. Her predecessor, Erik Siebert, was also an interim appointment who had not yet been confirmed by the Senate, though he garnered the support of Virginia’s two Democratic senators. That support was cited by Mr. Trump when he decided to fire Mr. Siebert, a DOJ veteran who according to ABC News was balking at demands from higher-ups to indict Mr. Comey or New York’s attorney general, Leitita James.Ms. Halligan showed no such hesitation despite having never before prosecuted a case. She was part of Mr. Trump’s defense team in the Mar-a-Lago case — the lead attorney is now the no. 2 man at the DOJ, Todd Blanche. More recently, she was tasked by the president with bringing to heel the Smithsonian museums. On Monday Lawfare published an exchange on the encrypted messaging platform Signal between Ms. Halligan and a reporter that touched on the strength of the mortgage fraud case against Ms. James.At issue in Ms. Halligan’s appointment is whether the president can appoint back to back interim United States attorneys. Statute mandates that after 120 days, the federal judges in the district vote to determine whether the appointment ought to be terminated or continued. Mr. Comey writes that “if the attorney general could make back-to-back sequential appointments of interim U.S. attorneys the 120-day period would be rendered meaningless.”A similar drama is unfolding in New Jersey, where yesterday an appeals court weighed whether the interim United States attorney for New Jersey, Alina Habba, is lawfully appointed. A federal judge, Matthew Brann, ruled that she was not exercising authority legitimately, though he declined to dismiss all the charges she oversaw. Judge Brann wrote that she “is not currently qualified to exercise the functions and duties of the office.”The attorney leading the push against Ms. Habba, Abbe Lowell — also Ms. James’s lawyer — told the appeals court that under the government’s position “somebody never has to be nominated and confirmed, and can serve all the functions of a U.S. attorney, forever.” He accused the government of cobbling together “a chimera of seven different statutes” to justify Ms. Habba’s appointment.Both Mr. Lowell and Mr. Comey’s defense team — which now includes Michael Drebeen, who argued on Mr. Smith’s before the Supreme Court in the presidential immunity case that Mr. Trump won — point to a 1986 DOJ memorandum written by none other than Justice Samuel Alito, then deputy assistant attorney general. In that opinion he argued that the attorney general could not appoint successive interim United States attorneys.Mr. Comey cites that precedent to argue that Ms. Halligan’s indictment “is fatally flawed because it resulted directly from a paradigmatic violation of the Constitution’s Appointments Clause — a core element of the separation of powers that defines when and how officers of the United States acquire their authority to act.” Dismissal is warranted, he reckons, because, unusually, Ms. Halligan signed the indictment herself. The former FBI director, to buttress that position, cites Justice Clarence Thomas’s endorsement of Judge Cannon’s skepticism with respect to Mr. Smith’s appointment. The high court’s senior justice wrote in 2024 that “questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause.” Judge Cannon answered those questions in the negative.In a separate filing on Monday, Mr. Comey also argued that the case against him ought to be dropped as a “selective” and “vindictive” prosecution solely motivated by Mr. Trump’s animus.

James Comey’s Lawyers Try Novel Strategy To Dismiss the Case: Cite Judge Who Tossed Jack Smith’s Case Against Trump

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