On Monday, James Comey, the former FBI director, and his legal team filed several motions to dismiss his indictment permanently, arguing that the charges against him are fundamentally flawed and should not be refiled.

In a surprising twist, Comey referenced U.S. District Judge Aileen Cannon as a key legal authority. Judge Cannon is known for her decision to dismiss former President Donald Trump’s Mar-a-Lago classified documents case, citing an unlawful appointment of special counsel Jack Smith, based on a concurring opinion by Justice Clarence Thomas.

The motions submitted by Comey aim to have the false statement and obstruction charges against him dismissed on grounds of selective or vindictive prosecution. They prominently reference Trump’s public demands for U.S. Attorney General Pam Bondi to prosecute him. Additionally, they question the legitimacy of Lindsey Halligan’s appointment as interim U.S. Attorney. Halligan, a former defense attorney in the Mar-a-Lago case, is now a novice prosecutor.

Comey’s legal arguments draw on a 1986 opinion by Samuel Alito, now a Supreme Court Justice, from his time at the DOJ’s Office of Legal Counsel. They argue against the DOJ’s appointment of an interim U.S. attorney. The team also cites Justice Thomas’ solo concurrence in the Trump v. United States case, which favored Trump.

This particular concurrence was notably cited by Judge Cannon shortly thereafter to dismiss the prosecution of Trump by then-special counsel Smith in mid-July 2024.

It appears Comey’s legal team, which includes notable figures like Patrick Fitzgerald, Jessica Carmichael, former Mueller investigation prosecutor Michael Dreeben, and former federal prosecutor Rebekah Donaleski, have been closely following these legal precedents.

“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.

“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.”