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emptywheel.bsky.social
emptywheel
@emptywheel.bsky.social
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Coverage of American authoritarianism with a focus on legal cases. An American-Irish in Limerick, Ireland.

Legendary potty mouth!
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emptywheel.bsky.social
Also: Sorry, I thought I had linked upstairs.

Here's the filing.

storage.courtlistener.com/recap/gov.us...
Reply – #174 in United States v. Comey (E.D. Va., 1:25-cr-00272) – CourtListener.com
Reply by James B. Comey, Jr re 59 MOTION to Dismiss Indictment based on Vindictive and Selective Prosecution (Attachments: # 1 Exhibit)(Carmichael, Jessica) (Entered: 11/10/2025)
storage.courtlistener.com
November 11, 2025 at 12:10 AM
emptywheel.bsky.social
This is another ¶ that could blow up later.

The stated purpose of this prosecution is to assume due process doesn't exist.
The government’s only other argument against dismissal with prejudice depends on upending one of the most basic and fundamental premises of our criminal justice system: the presumption of innocence. The government asserts (ECF No. 138 at 42) that dismissal with prejudice would “thwart[] the public’s interest in the enforcement of its criminal law” because it would allow Mr. Comey “to escape accountability for lying to and obstructing Congress.” But the assumption that Mr. Comey must be guilty—before any public airing or testing of its evidence—disregards bedrock principles underlying our system of justice. The government’s unfounded assumptions of guilt cannot excuse its egregious constitutional violations.
November 11, 2025 at 12:05 AM
emptywheel.bsky.social
Even more low key ¶ that's there, IMO, for appeal. this lays the groundwork, IMO, to expand how selective prosecution works.
Finally, the government suggests (ECF No. 138 at 38-39) that Armstrong overruled the many cases establishing that unusual prosecutorial procedures are evidence of a bad-faith and invidious motive. See ECF. No. 59 at 35. But those cases simply apply a well-established principle that applies to all equal protection cases: “Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977). The aberrant procedures that led to this indictment, after the President’s protracted campaign against Mr. Comey, paint an unmistakable picture: Mr. Comey is being singled out for punishment because of the President’s discriminatory purpose.
November 11, 2025 at 12:01 AM
emptywheel.bsky.social
This is super low key rebuttal of govt case, focusing solely on comms after Richman left FBI. There's reason for that: bc Comey shared classified details of SVR in January 2017.
The government’s silence is particularly striking because, despite its extended (ECF No. 138 at 4-11, 14-15) description of events that purportedly form the basis for the indictment here, it does not attempt to explain how its narrative supports its theories. On the contrary, the narrative undercuts its case. For instance, while Count One of the indictment alleges that Mr. Comey authorized Mr. Richman to serve as an “anonymous source” about the “Clinton investigation” while he was “at the FBI,” ECF No. 1 at 1, most of the communications the government cites occurred long after Mr. Richman left the FBI in February 2017—and none provides support for Mr. Richman being a source of information (as opposed to an explainer of public facts) and none so much as mentions Mr. Richman being anonymous. ECF No. 138-6. It is therefore unsurprising that every career prosecutor to touch this case reportedly declined charges. The government’s own narrative thus provides further evidence that this case would never have been charged but for the President’s animus. 256 (2006); see also Vullo, 602 U.S. at 189. Accordingly, a defendant may raise a vindictive prosecution claim when a prosecution was brought to “deter[] [the defendant’s] exercise of his First Amendment rights.” Bragan v. Poindexter, 249 F.3d 476, 483 (6th Cir. 2001). 10
November 10, 2025 at 11:54 PM
emptywheel.bsky.social
This passage, arguing that 1A can be a basis for vindictive prosecution, is super important.
6. Finally, the government’s suggestion (ECF No. 138 at 24-25) that a vindictiveprosecution argument cannot be based on the exercise of First Amendment rights lacks support in precedent or principle. A prosecution brought to “punish[]” an individual “for exercising a protected statutory or constitutional right” is “a due process violation ‘of the most basic sort.’” United States v. Goodwin, 457 U.S. 368, 372 (1982). Nothing in that rule suggests that certain constitutional rights are less worthy of protection than others. On the contrary, the Supreme Court has made clear that “government officials” may not “subject[] an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006); see also Vullo, 602 U.S. at 189. Accordingly, a defendant may raise a vindictive prosecution claim when a prosecution was brought to “deter[] [the defendant’s] exercise of his First Amendment rights.” Bragan v. Poindexter, 249 F.3d 476, 483 (6th Cir. 2001). 10
November 10, 2025 at 11:44 PM
emptywheel.bsky.social
Super low key, Comey lays out the evidence that Trump had no cause to claim that Comey leaked classified info (which claim prosecutors parrotted).
7 No evidence supported the President’s assertion that Mr. Comey leaked classified information, and the President’s indifference to facts further confirms that his accusations reflected animus, not “legitimate prosecutorial motive.” See ECF No. 55 at 4-6 (explaining that “there was no ‘leaking’” of classified information to the press by either Mr. Comey or his counsel” as was confirmed in the August 2019 Department of Justice (DOJ) Inspector General Report). The FBI and DOJ Arctic Haze investigation similarly found no basis for charging Mr. Comey for “false statements or with the substantive offenses under investigation.” Arctic Haze Memo at -065.
November 10, 2025 at 11:40 PM
emptywheel.bsky.social
Even worse!!!
Cause to parrot Russian disinformation!!!
To begin, the tweet does not reflect the President’s opinion about Mr. Comey, nor does it refer to Mr. Comey’s May 3 testimony as the government misleadingly implies. Instead, the tweet quotes a report based on a conversation on Fox and Friends describing a letter written by former Trump campaign advisor Carter Page stating Page’s view of Mr. Comey’s March 20, 2017 testimony about links between the Trump campaign and the Russia government.5 This tweet can hardly qualify as expressing the President’s legitimate prosecutorial motive—as opposed to relaying hearsay from a television program with no factual basis. In fact, it is the type of unfounded accusation that displays animus rather than a genuine interest in justice. And despite the government’s reliance on it as preceding Mr. Comey’s public statements, the tweet came after the news broke about Mr. Comey’s imminent testimony, i.e., after the President knew that Mr. Comey intended to exercise his First Amendment rights to speak publicly about Mr. Trump’s conduct in office. The President’s preemptive effort to discredit Mr. Comey reflects his animus triggered by Mr. Comey’s anticipated protected speech. 5 The tweet (issued in two parts) says: “So now it is reported that the Democrats who have excoriated Carter Page about Russia, don’t want him to testify. He blows away their....” “...case against him & now wants to clear his name by showing ‘the false or misleading testimony by James Comey, John Brennan...’ Witch Hunt!” Appendix at 1. The tweet was issued thirty minutes after Fox and Friends broke the same story. Id. And Mr. Comey had testified publicly before the House Intelligence Committee on March 20, 2017, to confirm the Trump-campaign and Russian-interference investigation. See Mueller Report, supra n.4 at 52-53.
November 10, 2025 at 11:31 PM
emptywheel.bsky.social
Oh nooooooooooo!!!

Donny!!!

You've given Comey cause to introduce the Mueller Report!!!!
4 See Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election Vol. II, U.S. Dep’t of Justice, at 27-28, 33-36, 38-41, 57-60 (Mar. 2019) (“Mueller Report”) (recounting Mr. Comey’s mounting concern about the impropriety of the President’s actions), https://perma.cc/W3DH-PLS3. The President’s concerns were well founded: Mr. Comey’s June 8, 2017 testimony provided many details about his troubling interactions with the President. Open Hearing with Former FBI Director James Comey Before the S. Comm. on Intelligence, 115th Cong., 1st. Sess. (June 8, 2017) (“Intel Hearing”), https://perma.cc/UG4P-K2ZJ.
November 10, 2025 at 11:28 PM
emptywheel.bsky.social
Again, Comey citing Abrego.
Not only does President Trump have the ultimate power to cause a prosecution, but the sequence of events that led to Mr. Comey’s prosecution leaves no doubt that he exercised that power here. After forcing out the incumbent United States Attorney, Erik Siebert, because of his reticence to bring this and other cases against the President’s perceived political enemies, the President posted on social media a message to the Attorney General excoriating her for failing to prosecute those enemies—including Mr. Comey—and directing that “JUSTICE MUST BE SERVED NOW.” See id. at 10-11. In the same message, he praised Ms. Halligan’s legal ability, and, within 48 hours, Ms. Halligan was appointed and four days later went to the grand jury to indict Mr. Comey. See id. at 11-12. One does not need to connect these dots: they form an unmistakable arrow from the President’s bow to Mr. Comey as the target. If “[t]he motivations of the people who place the file on the prosecutor’s desk are highly relevant when considering a motion to dismiss for vindictive prosecution,” Abrego, 2025 WL 3002840, at *1 (emphasis added), the motivations of the President who installed the prosecutor as U.S. Attorney after publicly calling for Mr. Comey’s prosecution are compelling proof of his role in engineering the indictment. The basis for imputation here is clear.1
November 10, 2025 at 11:23 PM
emptywheel.bsky.social
The former FBI Director, Jim Comey, cites the case of an undocumented immigrant, Kilmar Abrego, in his vindictive prosecution arg.

There's an important commonality between these cases.
indictments. United States v. Dickerson, 975 F.2d 1245, 1251 (7th Cir. 1992) (declining to impute alleged animus of FBI agents and state police officers); see United States v. Spears, 159 F.3d 1081, 1087 (7th Cir. 1998) (declining to impute alleged animus of a state prosecutor and investigators from the Bureau of Alcohol, Tobacco, and Firearms); United States v. Gilbert, 266 F.3d 1180, 1187 (9th Cir. 2001) (declining to impute alleged animus of IRS investigators); United States v. Cooper, 617 F. App’x 249, 251 (4th Cir. 2015) (per curiam) (declining to impute alleged animus of local law enforcement). Those cases are readily distinguishable from this one, where the animus springs from the head of the Executive Branch who has supervisory authority over all federal prosecutors and who exercised that power in this case. people who place the file on the prosecutor’s desk are highly relevant when considering a motion to dismiss for vindictive prosecution.” United States v. Abrego, No. 25-cr-00115, 2025 WL 3002840, at *1 (M.D. Tenn. Oct. 27, 2025) (citing Adams, 870 F.2d at 1146). And the government itself acknowledges that when an individual harboring animus “displace[s]” the prosecutor as “‘the ultimate decision-maker’” in bringing a prosecution, that individual’s animus can be imputed to the prosecutor. See ECF No. 138 at 20 (citing United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995)).
November 10, 2025 at 11:21 PM
emptywheel.bsky.social
More snark on the Halloween magical pony (this section is quite long).
The government argues that Attorney General James’s request for an injunction has been “overtaken by events.” Br. 30. But none of those “events” cure the constitutional violation or render Ms. Halligan eligible to supervise this prosecution. The Attorney General’s attempt to fix Ms. Halligan’s appointment is invalid on its face. See Gov’t Ex. A, ECF No. 43-1. On October 31, 2025, the Attorney General had no power to appoint Ms. Halligan to new prosecutorial position “as of September 22, 2025.” Id. Just as President Trump could not announce tomorrow that he is “appointing” Attorney General Bondi as the acting Administrator of NASA from January 2025 to March 2025, Attorney General Bondi lacked the power announce an appointment of Ms. Halligan that bent space and time. To this date, Ms. Halligan has not been properly appointed to any prosecutorial position that saves the illegitimate indictment or allows her to supervise this case as illegally brought.
November 10, 2025 at 10:53 PM
emptywheel.bsky.social
100 times. Thanks!
November 10, 2025 at 10:49 PM
emptywheel.bsky.social
More on a shiv that Abbe Lowell will deploy that Pat Fitz will not, in my experience: You cowards refuse to disavow Trump.
In faulting Attorney General James for “try[ing] to bootstrap” a Section 546 violation into a violation of the Appointments Clause, the government betrays a fundamental misunderstanding of how the two provisions relate. The government again attempts to slay a strawman in emphasizing that “not every action in excess of statutory authority is ipso facto in violation of the Constitution.” Br. 23 (citation omitted). That is not what Attorney General James argues. Attorney General James’s theory of a constitutional violation is grounded in the plain text of the Appointments Clause and does not, as the government mistakenly claims, provide that “every statutory violation would become a constitutional violation.” Br. 23 (emphasis omitted). The Appointments Clause dictates that inferior officers like U.S. Attorneys can be appointed only 1) by the President “with the Advice and Consent of the Senate,” or 2) through a process that Congress has properly authorized “by Law.” An appointment that comports with neither of these pathways violates the Appointments Clause. In United States v. Trump, 740 F. Supp. 3d 1245, 1304 (S.D. Fla. 2024), the district court recognized that if an inferior office is appointed in a manner that does not comply with any statute, her appointment violates the Appointments Clause. The government contends that Attorney General James’s theory of Appointments Clause violations is too broad, but tellingly, it does not argue that Trump was incorrectly decided.
November 10, 2025 at 10:49 PM
emptywheel.bsky.social
Here's how Tish James addresses Pam Bondi's Halloween time machine -- by calling it one.

Again, as a NAL, it would be a super cool assignment for law school to compare these responses.
Because this indictment violates both the Appointments Clause and Section 546, the Court must dismiss this case. After Attorney General James filed this motion to dismiss, Attorney General Bondi undertook a series of novel maneuvers to attempt to clean up the mess of Ms. Halligan’s unlawful interim appointment. See Gov’t Ex. A, ECF No. 43-1 (Oct. 31, 2025 Appointment and Ratification Order). But Attorney General Bondi does not have a time machine. None of Attorney General Bondi’s actions change the fact that when Ms. Halligan brought this indictment before the grand jury, apparently entirely on her own, she was not a government attorney. Attorney General Bondi could not, on October 31, 2025, appoint Ms. Halligan to a new prosecutorial position effective September 22, 2025. The government cannot point to any case indicating that so long as the government allegedly “intended” to vest the relevant official with the proper authority, an invalid appointment can be excused. Br. 21. It is what the Attorney General did, not what was in her mind, that determines whether the appointment was proper. All parties agree that “any government attorney can present a case to a grand jury or sign an indictment.” Gov’t Br. 2 (emphasis added). The problem is that Ms. Halligan brought this indictment as a private citizen with no authority to litigate on behalf of the United States. No amount of ex-post maneuvering can rescue this unlawful indictment from dismissal.
November 10, 2025 at 10:41 PM
emptywheel.bsky.social
Btw, I'll come back and compare how both teams addressed this, bc both did.

It would make a fun law school exercise, IMO.
November 10, 2025 at 10:29 PM
emptywheel.bsky.social
In my experience, Pat Fitz would never get snarky in a court filing.

Abbe Lowell, on the other hand ...
The government’s resort to legislative history is similarly unavailing. After deriding legislative history as “not the law,” Br. 11 (citation omitted), the government employs the worst version of the practice it criticizes: “looking over a crowd and picking out your friends.” Br. 11
November 10, 2025 at 10:28 PM
emptywheel.bsky.social
I have no idea how much Comey & his lawyers & James & her lawyers are chatting--ultimately this is all going to the same District Judge & the same Circuit. & both defendants are accomplished lawyers.

But James & her team took this argument abt Immigration law, which may matter upstairs, at SCOTUS.
Though the government argues that Fourth Circuit precedent supports its preferred reading of Section 546, it relies on a recent case that instead cuts against its expansive theory of the Attorney General’s power to appoint U.S. Attorneys. In Salomon-Guillen v. Garland, 123 F.4th 709 (4th Cir. 2024), the Fourth Circuit considered the scope of the Attorney General’s authority to appoint temporary members to the Board of Immigration Appeals (BIA). Under the relevant regulations, the unilateral authority to appoint permanent members of the BIA belonged to the Attorney General. See 8 C.F.R. § 1003.1(a)(1). Neither Senate confirmation nor any other mechanism provided a check on the Attorney General’s power. Id. The appellant argued, however, that there was an implicit constraint on the Attorney General’s authority to appoint temporary Board members. Salomon-Guillen, 123 F.4th at 717. The regulation at issue authorized the appointment of “temporary Board members for terms not to exceed six months.” 8 C.F.R. § 1003.1(a)(4) (2022) (emphasis added). In the appellant’s view, the absence of the word “renewable” before “terms” indicated that the Attorney General could not appoint a temporary Board member to successive terms. The Fourth Circuit rejected this argument, concluding that the regulation’s text did not “restrict the [Attorney General’s] power to appoint the same person to multiple consecutive terms.” Salomon-Guillen, 123 F.4th at 717.
November 10, 2025 at 10:26 PM
emptywheel.bsky.social
Rebekah Donaleski, who worked with the Eric Adams prosecutors, cites that case for the principle that the Comey indictment must be dismissed w/prejudice.

😎
The Court should dismiss the indictment with prejudice. That is the only remedy that will promote the interests protected by the Appointments Clause and deter the government from deploying unlawful appointments to effectuate retaliation against perceived political opponents. In contrast, a dismissal without prejudice will reward the government for its willful manipulation of Section 546 and the statute of limitations by allowing it to seek reindictment within six months of the dismissal. And at minimum, a dismissal without prejudice would empower the government to use the “threat of re-indictment” to chill Mr. Comey’s right to speak out against the President. United States v. Adams, 777 F. Supp. 3d 185, 218 (S.D.N.Y. 2025) (dismissing with prejudice to avoid similar concern). This case calls out for an exercise of the Court’s “supervisory power” to “deter” the government’s “illegal conduct.” United States v. Hasting, 461 U.S. 499, 505 (1983).
November 10, 2025 at 10:01 PM
emptywheel.bsky.social
The section on ratification is genuinely interesting, legally, if you ignore how ridiculous it was that Trump's corrupt AG tried to do this on Halloween.

But don't ignore that point. It makes it funnier.
In any event, Section 3288 would not allow the government to reindict Mr. Comey if the indictment were dismissed. The grace period is triggered only if an “indictment is found,” 18 U.S.C. § 3282; but here, the purported indictment was void ab initio. And the government cannot “grant itself a six-month extension of the statute of limitations . . . simply by filing a patently defective and meaningless charging document.” United States v. Gatz, 704 F. Supp. 3d 1317, 1330 (S.D. Fla. 2023). Moreover, Section 3288 states that “[t]his section does not permit the filing of a new indictment . . . where the reason for the dismissal was the failure to file the indictment . . . within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution.” Id. (emphasis added). That proviso applies here. Using an illegal appointment to procure an indictment days before the statute of limitations expires—thus depriving a person of repose—is precisely the type of “reason” that must “bar a new prosecution” under Section 3288. Indeed, Section 3288 expressly precludes reindictment when the first indictment was filed after expiration of the statute of limitations. To give that provision meaning, the statute must also bar new prosecutions when a void purported indictment is secured simply to prevent the statute of limitations from expiring. Any other reading would “obliterate the statute of limitations.” United States v. Clawson, 104 F.3d 250, 252 (9th Cir. 1996).
November 10, 2025 at 9:56 PM