Left: President Donald Trump walks to board Air Force One at Naval Station Norfolk Chambers Field in Norfolk, Va., Sunday, Oct. 5, 2025. (AP Photo/Alex Brandon). Right: 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).
As James Comey is arraigned in a Virginia federal court on Wednesday for allegedly lying to and obstructing the Senate Judiciary Committee in 2020, charges he said he’s “innocent” of committing, it’s become increasingly clear that his possible line of defense has many layers. And in a twist, if or when the case begins discovery, the DOJ may have no choice but to hand over key documents that could make Comey’s case for dismissal for him before a trial can ever happen.
Law&Crime on Monday highlighted an ABC News report that revealed the U.S. Attorney’s Office (USAO) for the District of Columbia, Bill Barr-appointed special counsel John Durham, and a previous USAO for the Eastern District of Virginia (EDVA), which is now prosecuting Comey, each examined the evidence and separately concluded that the low standard of probable cause could not be established.
On its own, it provided a clear path for Comey defense lawyer and renowned former federal prosecutor Patrick Fitzgerald to claim selective or vindictive prosecution, coupled with an analysis of the circumstances surrounding President Donald Trump’s firings, the ensuing appointment of his former criminal defense attorney Lindsey Halligan as acting U.S. attorney in EDVA, and the president’s open calls for U.S. Attorney General Pam Bondi not to “delay any longer” in prosecuting his “guilty as hell” longtime rivals, including Comey.
Fredericksen (more) about Comey’s expected motion to dismiss criminal case:
“Not only that, but when he files that motion… he’s going to demand to get all the records the Dept of Justice has about the other prosecutors who looked at this case & decided not to bring this case”
— Scott MacFarlane (@MacFarlaneNews) October 7, 2025
On a deeper level, if the ABC News report is accurate on the point that there are three separate determinations by prosecutors that Comey’s charges were not on the table, those memoranda would be potentially exculpatory and discoverable Brady material, favorable evidence that the government has to hand over to the defense. The same is true of Durham’s reported August meeting with Virginia prosecutors.
In addition to whatever Durham told the 2nd most recent prosecutors, all the exculpatory evidence Durham gathered on this subject will have to be turned over to Comey in discoveryhttps://t.co/Yn7mEwnzH1
— Josh Gerstein (@joshgerstein) October 6, 2025
In sum, Comey would have at his disposal a reported “lengthy” EDVA “declination memo” that gives the reasoning behind its non-prosecution recommendation — while using Durham and D.C. prosecutors’ decisions to buttress that conclusion. That’s on top of the specter of ex-insurance lawyer and newly minted prosecutor Halligan’s appointment to bring the case just before the five-year statute of limitations expired, after the very office she heads recommended against prosecuting Comey.
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For national security attorney and legal commentator Bradley Moss, the non-charging memoranda would “no doubt serve as Exhibits 1, 2, and 3 in support of a motion to dismiss for selective prosecution” — if the case “ever even gets to discovery, and there is a decent chance Mr. Comey’s attorneys will successfully get the case tossed before it even gets that far.”
“It is unheard of for DOJ to try and bring a case when career prosecutors recommended against it, when a former politically appointed special counsel recommended against it, and when the only DOJ official willing to prosecute the case is an acting appointee,” Moss told Law&Crime.
Though the Comey prosecution represents to the president’s base deserved comeuppance for a “Dirty Cop,” as Trump himself put it, Moss believes the case is on track to achieve little more than handing Comey “a ready-made seven figure book advance and movie deal.”
Aside from active career prosecutors and Durham, several former federal prosecutors and legal experts have critiqued the indictment as “convoluted,” “not a slam dunk,” and a “really, really hard” type of case to prove.
Fox News contributor and legal commentator Andrew McCarthy went so far as to call it “incoherently drafted” and by no means an open-and-shut case.
Halligan will have to prove Comey made a “materially false, fictitious, or fraudulent statement or representation” — that is, “knowingly and willfully” lied to Congress about a material fact — when he denied authorizing FBI leaks to the media, reportedly relating to the probe of Hillary Clinton’s use of a private email server while secretary of state.
