Left: Justice Clarence Thomas during a 2018 legal discussion (YouTube/Library of Congress). Center: Former Director of the Federal Bureau of Investigation James Comey laughs while addressing a gathering at Harvard University”s Institute of Politics’ JFK Jr. Forum in Cambridge, Mass., Monday, Feb. 24, 2020. (AP Photo/Charles Krupa). Right: Judge Aileen Cannon (U.S. District Court for the Southern District of Florida).
James Comey and his high-powered legal team on Monday filed multiple motions to throw out his indictment with prejudice so that the “fatally flawed” charges he faces can’t be filed again.
The former FBI director cited as an authority none other than U.S. District Judge Aileen Cannon, who famously relied on a solo concurrence by Justice Clarence Thomas to toss out President Donald Trump’s Mar-a-Lago classified documents prosecution based on the unlawful appointment of special counsel Jack Smith.
The much-anticipated Comey motions, which seek dismissal of false statement and obstruction charges on the basis of selective or vindictive prosecution, prominently citing Trump’s public calls for U.S. Attorney General Pam Bondi to prosecute him, also directly challenge the validity of the appointment of interim U.S. Attorney Lindsey Halligan, Trump’s former Mar-a-Lago case defense attorney turned rookie prosecutor.
Comey’s lawyers not only cited a 1986 opinion from Samuel Alito — when the current Supreme Court justice was an attorney in the DOJ’s Office of Legal Counsel — in making the case that the DOJ had made an invalid successive appointment of an interim U.S. attorney, but also leaned on Justice Thomas’ solo concurrence in the Trump v. United States, SCOTUS’ immunity decision that fell in Trump’s favor.
That concurrence was memorably cited just two weeks later by Cannon, a Trump appointee, to doom then-special counsel Smith’s prosecution of then-candidate Trump in mid-July 2024.
Evidently, Comey’s attorneys — including Patrick Fitzgerald, Jessica Carmichael, former Mueller probe prosecutor Michael Dreeben, and former federal prosecutor Rebekah Donaleski — were paying attention.
“The Attorney General’s appointment of Ms. Halligan thus violates not only Section 546,” a U.S. attorney vacancy statute, “but also the Appointments Clause,” the filing said, directly citing Thomas’ concurrence in Trump v. U.S. and Trump’s Mar-a-Lago case in the Southern District of Florida.
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“Similarly, in United States v. Trump, the court applied these principles when dismissing an indictment on Appointments Clause grounds because of a defect in the appointment of the prosecutor who secured the charges,” Comey’s filing said, referring to Jack Smith’s loss. “The court concluded that ‘[b]ecause Special Counsel Smith’s exercise of prosecutorial power has not been authorized by law,’ there was ‘no way forward aside from dismissal of the Superseding Indictment.'”
Halligan likewise lacked authority to “take the challenged action in the first place,” Comey’s filing continued.
In his concurrence, Thomas wrote that Smith’s appointment was “invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it ‘by Law.'”
Here, Comey asserts that the indictment is a “nullity” that “must be dismissed” with prejudice because Halligan’s allegedly unlawful appointment made it void from the get-go. To do anything other than dismiss the case for the rest of time would be to “reward” the Trump administration for its “unlawful installation of Ms. Halligan as interim U.S. Attorney and consequent manipulation of the statute of limitations.”
“Ms. Halligan’s unlawful appointment renders her purported official actions void ab initio,” the filing reads, using the Latin phrase for “from the beginning.”
“The indictment against Mr. Comey that she alone secured and signed is thus a nullity and should be dismissed,” the filing concluded. “That dismissal should be with prejudice because any other remedy would not sufficiently address and deter the Executive Branch’s willfully unlawful conduct in this case.”
