Live Updates: Comey Will Seek to Dismiss Case as Vindictive Prosecution
The former F.B.I. director pleaded not guilty during a hearing in federal court. He requested a jury trial, which was set for Jan. 5, and clarity on the two charges against him.
James B. Comey, the former F.B.I. director reviled by President Trump and targeted as part of his retribution campaign, pleaded not guilty at his arraignment Wednesday morning in federal court in Alexandria, Va.
The judge overseeing the hearing set a trial date for Jan. 5. But Mr. Comey’s lead lawyer, Patrick J. Fitzgerald, said he intended to file to motions to dismiss the case before then, including one accusing the government of vindictive and selective prosecution based on Mr. Trump’s public demand that Comey be prosecuted.
Mr. Fitzgerald, a former federal prosecutor, also said the Justice Department’s rush to charge Mr. Comey had left his defense team unclear about the specifics of the counts he is facing. Mr. Comey was indicted last month in a two-page filing that offered almost no details on the accusations.
“We still have not been told who Person 3 and Person 1 are,” Mr. Fitzgerald said, referring to the indictment. He later added: “We still haven’t been told precisely what is in count 1 or count 2.”
Mr. Comey faces one count of making a false statement and one count of obstruction of a congressional proceeding in connection with his testimony before a Senate committee in September 2020. He faces up to five years in prison if convicted, though many current and former prosecutors believe the case will be difficult to prove.
Here’s what else to know:
Routine proceeding: Mr. Comey’s plea and request for a jury trial were entered in a brief appearance before Judge Michael S. Nachmanoff. Judge Nachmanoff said he was “a little skeptical” about prosecutors’ insinuations that the case was complex enough to require extra time. “This does not appear to me to be an overly complicated case,” he said.
Bitter history: The case against Mr. Comey, who ordered the investigation into the Trump campaign’s connections to Russia in 2016, is the most significant legal action taken against people Mr. Trump has publicly targeted. His indictment came shortly after the president all but commanded his attorney general to take legal action against Mr. Comey; Senator Adam B. Schiff, a California Democrat; and New York’s attorney general, Letitia James.
Rocky path: The case against Mr. Comey proceeded over the opposition of prosecutors in the Eastern District of Virginia. The prosecutor who ultimately handled it was Lindsey Halligan, a White House lawyer hastily installed by Mr. Trump as U.S. attorney after her predecessor found insufficient evidence to support an indictment.
The defense: Mr. Comey’s defense is being led by Patrick J. Fitzgerald, who was himself once a prominent federal law enforcement official. As a federal prosecutor in New York and then Chicago, Mr. Fitzgerald played major roles in several important terrorism cases and successfully prosecuted two former governors of Illinois, George Ryan and Rod Blagojevich, in corruption cases.
President’s impact: Vindictive prosecution motions are notoriously difficult to win, but Mr. Trump’s voluble vitriol and his repeated attacks on his former F.B.I. director could provide Mr. Comey’s defense with an avenue to protect him.
The district judge presiding in the case, Michael Nachmanoff, projected an air of polite impatience with the prosecution in Comey’s arraignment hearing, and said he was “skeptical” of the government’s claim that there would be significant classified evidence introduced. He made it clear he did not want to drag the proceedings along.
There has been discussion among legal commentators about whether the Trump’s administration’s appointment of Lindsey Halligan as U.S. attorney was invalid, in which case the indictment she obtained could be thrown out.
The issue is that when there is a vacancy in the position, the attorney general is able install someone as an “interim” U.S. attorney for 120 days, but after that expires, the law says a federal court can decide who next serves as interim.
The U.S. attorney who was removed for refusing to bring a case against Comey based on the available evidence, Erik Siebert, had already served a 120-day term as an attorney general appointment. The question is whether the Trump administration had the authority to make a second interim appointment.
If the indictment is thrown out on the grounds that Halligan is not a valid U.S. attorney, it is hard to see how the case could be revived.
It is already working around some statute of limitations concerns: The five-year limit has already expired to charge Comey over testimony he gave to Congress in September 2020. Notably, charging him over that testimony itself was an indirect way to accuse him of having lied in the 2017 testimony, even though the statute of limitations had long since expired on that.
The vague charge against Comey referred to an exchange in which he said he stood by something he had said back in 2017.
Patrick J. Fitzgerald, who is representing the former F.B.I. director, James B. Comey Jr., was himself once a prominent federal law enforcement official. At an arraignment on Wednesday morning, it was Mr. Fitzgerald who entered a plea of not guilty on Mr. Comey’s behalf.
As a federal prosecutor in New York and then Chicago, Mr. Fitzgerald played major roles in several important terrorism and corruption cases. He worked on Al Qaeda cases in New York in the 1990s, and later successfully prosecuted two governors of Illinois, George Ryan and Rod Blagojevich, in corruption cases.
It was not, to say the least, a great start to their relationship. James B. Comey, then the F.B.I. director, arrived at Trump Tower two weeks before Donald J. Trump would be inaugurated in 2017. On the agenda was a briefing for the incoming president by Mr. Comey and the intelligence community chiefs on their finding that Russia had interfered in the 2016 election to hurt Hillary Clinton.
But Mr. Comey also planned to give the president-elect some even more awkward news.
Miles Taylor, the former senior homeland security department official and co-author of an anonymous 2018 essay critical of President Trump, was spotted in the crowd outside the courthouse for Comey’s arraignment. Trump ordered the Justice Department to investigate him earlier this year.
The government told the judge that it expects Comey’s trial to last two to three days. The defense lawyer, Patrick Fitzgerald, agreed to the government’s assessment but expressed confidence that his client would be able to dismiss the case based on the motions he intended to file alleging the wrongful appointment of Lindsey Halligan, the U.S. attorney leading the case, and on vindictive prosecution.
In the most significant development of the hearing, Patrick Fitzgerald, Comey’s lawyer, said he intended to file to motions to dismiss the case before trial: the first accusing the government of malicious and selective prosecution based on Trump’s public demand that Comey be prosecuted, the second seeking to challenge what he called the illegal appointment of Lindsey Halligan as U.S. attorney.
A big takeaway from Comey’s arraignment is that the public — and Comey himself — still don’t know what he is specifically accused of doing. The sparse indictment said he authorized someone to leak information about an investigation, without saying who that was and what the investigation was. Comey’s lawyer told the judge that the prosecution has still not told them the specifics.
This is, to say the least, one of several things that make this case — which President Trump pushed through, after a U.S. attorney was removed for refusing to bring it — highly unusual.
The defense will move to dismiss the case, arguing that the appointment of the prosecutor, Lindsey Halligan, was unlawful. That motion will be decided by another court, Judge Michael Nachmanoff said.
The arraignment is over. Comey was not taken into custody, and there are no conditions on his release.
Prosecutors also asked for a later trial in order to handle “a large amount of discovery which also includes classified information.”
But the judge said he was “a little skeptical” about the lawyers’ insinuations that the case was complex enough to require extra time.
“This does not appear to me to be an overly complicated case,” he said, adding: “I’m not going to force you to go to trial in December if both sides don’t feel they can be ready.”
Fitzgerald said that Comey’s defense team had proposed an extended schedule in the hopes they might avoid a trial altogether.
“Frankly, we feel in this case the cart may have been put before the horse,” he said, adding: “We’d like certain dispositive motions addressed first in the hopes a trial can be avoided.”
Patrick Fitzgerald, Comey’s lead attorney, said that the defense team’s “first substantive contact” with the prosecutors took place only Tuesday afternoon, and that there will still several aspects of the charges that needed to be clarified.
“We still have not been told who Person 3 and Person 1 are,” he said, referring to the indictment. He later added: “We still haven’t been told precisely what is in count 1 or count 2.”
Had the parties adhered to the speedy trial deadline, it would have set a trial date of no later than Dec. 17, which the judge indicated he would have granted. But Comey’s attorneys proposed an extended schedule, filing motions by Oct. 20, briefs by Nov. 20, and a trial date of Jan. 12.
The judge proposed pushing the trial date up a week earlier, to Jan. 5, and they all agreed.
The judge has set a trial date of Jan. 5. That is later than a speedy trial deadline would have indicated, but both the prosecutors and Comey’s defense team had asked for more time, citing, among other concerns, the need to scrutinize classified materials related to the case.
Comey’s lawyer Patrick J. Fitzgerald entered the plea of not guilty. They requested a trial by jury.
James Comey, the former F.B.I. director, arrived early and was seated at the defendants’ table in the courtroom more than 20 minutes before his arraignment was scheduled to begin. The prosecutor, U.S. Attorney Lindsey Halligan, entered the courtroom at about 9:45 a.m., and shook hands with Comey’s attorneys.
Lindsey Halligan, the lawyer chosen by President Trump to replace the ousted U.S. attorney in the Eastern District of Virginia, has left no doubt about her willingness to lead a charge on his behalf.
As one of his personal lawyers, Ms. Halligan, a go-for-the-jugular loyalist who is comfortable on television, denounced the F.B.I. when agents seized classified documents in 2022 from Mar-a-Lago, Mr. Trump’s private club and residence in Florida. As a White House special assistant, she has taken the lead in scrutinizing exhibits at the Smithsonian Institution for “improper ideology.”
The U.S. District Court in Alexandria, where Comey is waiting to be arraigned, has very stringent rules on electronics. The public, including journalists, are not allowed to bring in any electronic devices bigger than a cell phone. But those phones must be put into a sealed pouch provided by the court that cuts off service and which can only be unsealed upon leaving the courthouse.
Other courts in the Washington metro area allow devices to be brought in, although they must be turned off when the court comes to order.
In order to send these updates, my colleagues and I have to go outside the building.
An agent in the F.B.I.’s Washington field office was suspended after he refused to organize an escort of uniformed law enforcement officials to walk Comey into the courthouse before the news media, according to people with knowledge of the move who spoke on condition of anonymity for fear of retribution.
It remains unclear how that would have worked. Comey has only been issued a summons to appear in court, although arrests are not unheard-of in such cases.
The federal judge who will oversee the case against James B. Comey, the former F.B.I. director, has a long history of working in the courthouse where the charges were brought, first as a law clerk, then a public defender, and now a jurist.
The random assignment of Judge Michael S. Nachmanoff of Federal District Court to the case sets the stage for a high-stakes trial in the Eastern District of Virginia, where Mr. Comey himself once worked as a prosecutor.
Judge Nachmanoff, a Biden appointee, was confirmed in 2021 by senators including Lindsey Graham, Republican of South Carolina, who led the congressional hearing in September 2020 that is now at the center of the two-count indictment against Mr. Comey.
Mr. Comey is accused of lying to Congress when he denied authorizing anyone at the F.B.I. to share information anonymously with a reporter.
In the mid-1990s, Judge Nachmanoff clerked for one of the most well-respected judges in Northern Virginia, Leonie Brinkema. After a number of years in private practice, he went to the federal public defender’s office and came to oversee it in 2005, a position he held for the next decade.
The scene outside the courthouse was calm before Comey’s arraignment Wednesday, as television camera crews and photographers — and a few protesters — milled about the brick pavement in front of and opposite the courthouse, waiting for the former F.B.I. director’s arrival. Comey’s wife and family arrived well ahead of the 10 a.m. hearing.
A few protesters gathered outside held signs protesting the charges and decrying what they framed as an assault on the justice system. The signs they carried included “Show trial,” “Trumped up charges,” and “Release the Epstein files.”
Even before James B. Comey, the former F.B.I. director, was indicted last month, legal experts were already questioning whether the case might be vulnerable to an uncommon but powerful legal attack: allegations that President Trump, who has long called for Mr. Comey to be jailed, had pushed the Justice Department into opening an improper vindictive prosecution.
Such speculation gained at least a little steam after Mr. Trump recently weighed in on the charges, which center on whether Mr. Comey lied to Congress, in a manner that seemed to prejudge his guilt.
At the center of the Trump administration’s indictment of James B. Comey, the former F.B.I. director, is testimony he delivered before Congress in September 2020. But the details of the accusation against him remain murky because the indictment is extremely sparse. It was filed by a novice prosecutor installed last month by President Trump to lead the Eastern District of Virginia after her predecessor refused to bring the case.
The indictment charges Mr. Comey with one count of making a false statement to Congress and one count of obstructing a congressional proceeding.
The false statement charge asserts that in appearing before the Senate Judiciary Committee on Sept. 30, 2020, Mr. Comey told a U.S. senator that he “had not ‘authorized someone else at the F.B.I. to be an anonymous source in news reports’ regarding an F.B.I. investigation concerning” an unnamed person. But in fact, the indictment says, Mr. Comey had authorized someone to do so.
The obstruction charge is even vaguer. It asserts that Mr. Comey made “false and misleading statements” before the committee, but offers no details.
Here is a closer look at the indictment that the prosecutor, Lindsey Halligan, a former personal lawyer to Mr. Trump, obtained from a grand jury, along with a proposed charge that the jury rejected.
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