Lawyers for James Comey told a federal judge in Alexandria on Tuesday that they plan to file a motion early next week to formally dismiss his criminal case, citing what they argued is President Donald Trump’s ‘unlawful’ appointment of former White House aide Lindsey Halligan as acting U.S. attorney for the Eastern District of Virginia shortly before Comey’s indictment.
The filing is part of a broader effort by Comey’s legal team to have the criminal case tossed. His lawyers told the judge overseeing the case last week they planned a separate motion to dismiss the case on grounds of vindictive prosecution.
Tuesday’s filing is not a formal motion but a notice to the court that they plan to challenge Halligan’s appointment as acting U.S. attorney for the Eastern District. Doing so will require an ‘out-of-district judge’ to hear the motion, as they noted in the filing.
The move is part of a broader salvo from Comey’s legal team to have his criminal case tossed, amid what they say is a politically motivated effort pursued by a lawyer with no prosecutorial experience, who formerly worked as Trump’s personal lawyer and White House aide.
Trump in September announced he would install Halligan as the top prosecutor for the Eastern District of Virginia, replacing interim attorney Erik Siebert who resigned under pressure to indict both Comey and New York Attorney General Letitia James.
Comey’s lawyers previously suggested that Halligan’s appointment, three days before his indictment, could strengthen their motion to dismiss.
‘We think that’s an unlawful appointment,’ Comey’s lawyers said.
Comey’s criminal case has emerged as a political lighting rod, punctuating years of public broadsides and quietly simmering tensions between Trump and his onetime FBI director, whom he fired in 2017, less than halfway through Comey’s ten-year tenure as FBI director.
Comey used his memoir, ‘A Higher Loyalty,’ and subsequent public appearances to take umbrage against Trump and publicly criticize the actions he took during his first term. Trump has continued to assail Comey and scrutinize his tenure at the FBI, including by reportedly pressing for the investigation and empaneling of a grand jury.
Halligan ultimately secured the indictment from a grand jury in Alexandria just days before the statute of limitations ran out in bringing the case.
Halligan, a former insurance attorney in Florida, has said that the charges against Comey ‘represent intentional, criminal acts and tremendous breaches of the public’s trust.’
‘No one is above the law,’ she told reporters last month.
While the indictment drew praise from some Trump officials and allies, it also prompted criticism from others, who said the case shows the lengths Trump is willing to go to punish perceived political foes.
The notice from Comey’s lawyers was not the only significant development in his case this week.
Hours earlier, the federal judge assigned to his case, Judge Michael Nachmanoff, rejected the Justice Department’s request to limit Comey’s access to ‘protected’ discovery materials being used by prosecutors in the criminal case.
Nachmanoff said in an order that the government is obligated to share with Comey and his lawyers the discovery materials in the case, including those designated as ‘protected.’
Blocking Comey’s access to these materials would ‘unnecessarily hinder and delay’ his ability to prepare for his criminal case, he said.
‘Protective orders addressing the confidentiality and privacy interests of others should not override a defendant’s right to a fair trial,’ Nachmanoff added.
Further, he said, the government’s proposed order ‘does not sufficiently define the information constituting ‘Protected Material,’ thereby making it overbroad.’
The order resolves, for now, one of several public skirmishes that have emerged in the days since Comey was indicted last month in federal court in the Eastern District of Virginia, on one count of allegedly making a false statement to Congress during a Senate hearing in 2020, and one count of obstruction connected to the same event.
At issue most recently was whether Comey, the former FBI director who was fired by Trump during his first White House term in 2017, should be granted access to certain discovery materials in his criminal case.
Halligan asked the judge to restrict his access to discovery materials, citing their sensitive nature and concern about them remaining in the hands of defendants.
She argued the action has long precedent in the Eastern District of Virginia — the Alexandria-based federal court where many national security and intelligence cases are tried — calling it a ‘common practice.’
Comey’s lawyers filed their objection almost immediately.
They argued that Comey is a Virginia-licensed attorney who himself is ‘admitted to practice law in the Eastern District of Virginia,’ and who has already ‘been entrusted with some of the most sensitive and highly guarded information in the country,’ including during the Bush administration, when he served as the Deputy Attorney General and as FBI director — a role he held for nearly four years before Trump fired him in his first White House term.
‘To assert now, that he cannot be trusted with receiving discovery in his case controverts his long career of distinguished government service at the highest levels,’ his lawyers said.