Left: President Donald Trump boards Air Force One at Naval Station Norfolk Chambers Field in Norfolk, Va., on Sunday, Oct. 5, 2025. (AP Photo/Alex Brandon). Right: Ex-FBI Director James Comey chuckles during a talk at Harvard University’s Institute of Politics’ JFK Jr. Forum in Cambridge, Mass., on Monday, Feb. 24, 2020. (AP Photo/Charles Krupa).
As James Comey faces arraignment in a Virginia federal court on Wednesday over allegations of lying to and obstructing the Senate Judiciary Committee in 2020—charges he asserts he is “innocent” of—it’s becoming increasingly evident that his defense strategy is multi-faceted. Interestingly, when the case moves to the discovery phase, the DOJ might be compelled to produce crucial documents that could potentially support Comey’s request for case dismissal before a trial begins.
On Monday, Law&Crime drew attention to an ABC News article detailing that the U.S. Attorney’s Office (USAO) for the District of Columbia, the Bill Barr-appointed special counsel John Durham, and a former USAO for the Eastern District of Virginia (EDVA)—which is currently handling Comey’s prosecution—all independently reviewed the evidence and determined that there was insufficient probable cause.
This situation provides a clear opportunity for Comey’s defense attorney, the renowned former federal prosecutor Patrick Fitzgerald, to argue for selective or vindictive prosecution. He could also analyze the context surrounding President Donald Trump’s firings, the subsequent appointment of his former criminal defense lawyer Lindsey Halligan as acting U.S. attorney in EDVA, and the president’s public demands for the U.S. Attorney General Pam Bondi to swiftly prosecute his “guilty as hell” long-standing adversaries, including Comey.
Fredericksen (more) about Comey’s expected motion to dismiss criminal case:
“Moreover, when he submits that motion, he will request all records from the Department of Justice pertaining to the other prosecutors who assessed this case & decided against pursuing it,” he stated.
— Scott MacFarlane (@MacFarlaneNews) October 7, 2025
If the ABC News report is correct about the separate decisions by multiple prosecutors not to press charges against Comey, those findings could serve as exonerating and discoverable Brady material, evidence that the government is obligated to provide to the defense. The same applies to Durham’s reported meeting with Virginia prosecutors in August.
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.
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.
