By Andrew Goudsward and Sarah N. Lynch
ALEXANDRIA, Virginia (Reuters) -Lawyers for former FBI Director James Comey argued on Wednesday for the criminal charges against him to be dismissed during a hearing in which the judge sharply questioned the conduct of the prosecutor who secured the indictment as well as President Donald Trump’s role in the case.
The hearing in Alexandria, Virginia focused on Comey’s argument that the charges were brought because of the Republican president’s personal animosity and were aimed at silencing his criticism of Trump.
U.S. District Judge Michael Nachmanoff also expressed concerns about potential procedural errors by Lindsey Halligan, the Trump ally serving as interim U.S. Attorney for the Eastern District of Virginia who secured the indictment.
The judge’s tough questions represented the latest in a string of setbacks for the Justice Department in the case. A ruling by Nachmanoff to dismiss the charges would be a major embarrassment for Trump’s administration and would highlight a growing wave of skepticism within the judiciary about his efforts to prosecute political enemies.
“This is an extraordinary case and it merits an extraordinary remedy,” Comey defense lawyer Michael Dreeben said as he argued for dismissal of the charges during the hearing, which lasted about 90 minutes.
Dreeben called the case “a blatant use of criminal justice to achieve political ends.”
But Justice Department lawyer Tyler Lemons told the judge that Comey “was not indicted at the direction of the president of the United States or any other government official.”
Comey is among three prominent critics of the Republican president who have been hit with criminal charges by Trump’s Justice Department in recent months. Trump critics have described the charges as a part of a campaign by the president to chill opposition. Comey pleaded not guilty after being charged in September with making false statements and obstructing a congressional investigation.
In a tense but brief exchange, Nachmanoff posed questions directly to Halligan about what version of the indictment was presented to the grand jury that indicted Comey and who was present.
After repeated questioning by the judge, the prosecution acknowledged that the version of the indictment that Comey now faces was never presented to the entire grand jury after the panel previously rejected one of the proposed criminal counts.
After the admission, Dreeben told Nachmanoff this procedural error could be yet another reason why the case should be dismissed.
Nachmanoff is expected to weigh Trump’s influence on prosecutors as he considers Comey’s argument that the case is an improper “vindictive” prosecution brought solely to punish Comey for his criticism of Trump.
A VOW OF RETRIBUTION
Trump campaigned for the presidency last year in part on a vow of retribution and has demanded action against high-profile figures who have investigated or criticized him. Trump’s Justice Department also has charged New York state Attorney General Letitia James, an elected Democrat, and John Bolton, Trump’s former national security adviser.
The prosecution has accused Comey of lying to a Senate committee when he said he stood behind prior testimony denying that he authorized disclosures about FBI investigations to the news media.
Comey has launched a multi-pronged effort to have the charges dismissed before a trial.
His lawyers pointed to Trump’s years of social media broadsides against Comey dating to 2017, when Trump fired Comey as FBI director amid an investigation into contacts between Trump’s 2016 presidential campaign and Russians. Comey later called Trump unfit for office.
They also cited Trump’s decision to name Halligan, his former personal lawyer who had no prior prosecutorial experience, as the interim U.S. attorney to take over the case after her predecessor was forced out in part over reluctance to charge Comey.
Dreeben focused in particular on a September 20 social media post that Trump addressed to U.S. Attorney General Pam Bondi expressing frustration that “nothing is being done” to prosecute Comey and other political foes.
Trump’s post was “effectively an admission that this is a political prosecution,” Dreeben said.
Lemons said Comey had not cleared the high legal bar to let courts second-guess charging decisions by prosecutors.
Nachmanoff pressed Lemons on whether career prosecutors in the U.S. attorney’s office had drafted a memo laying out why Comey should not be charged. Lemons declined to confirm whether one existed, saying Deputy Attorney General Todd Blanche’s office had not given him permission to disclose those details because they are privileged.
A different judge – U.S. District Judge Cameron McGowan Currie – has expressed skepticism that Halligan was lawfully appointed as interim U.S. attorney, and is expected to rule on the issue before the Thanksgiving holiday on November 27.
Meanwhile, U.S. Magistrate Judge William Fitzpatrick, tasked with deciding certain pre-trial issues in Comey’s case, indicated in a ruling this week that Halligan may have made significant legal errors before the grand jury.
(Reporting by Andrew Goudsward and Sarah N. Lynch; Additional reporting by Jan Wolfe;Editing by Scott Malone, Bill Berkrot and Will Dunham)
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