Experts Cite Big Flaws, Abuses In Trump DOJ Charges Against FBI's Comey, NY's James

 

Former FBI Director James Comey, shown at left in a screenshot, and New York State Attorney General Letitia James (shown in a New York Times photo) have been indicted by the Trump Administration amidst vows of vengeance in two of the most important federal prosecutions in recent American history.

The Justice Integrity Project has curated recent news reports and expert commentary and concluded that prompt pre-trial dismissals or jury acquittals are likely for both prosecutions based on weak evidence and serious procedural flaws by the Justice Department. 

Recent federal charges by the Trump-led U.S. Department of Justice (DOJ) against two longtime officials identified as opponents are so flawed and abusive that the charges are likely to lead to prompt pretrial dismissive of the charges or jury acquittals, according to in-depth commentaries by leading experts.

The DOJ filed the charges in separate cases against former Trump FBI Director James Comey on Sept. 2 and against New York State Attorney General Letitia James on Oct. 8, with both cases brought by federal grand juries sitting in Alexandria, VA, located a short distance  across the Potomac River from Washington, DC.

The Justice Integrity Project (JIP) has closely followed the background circumstances of the cases for years, and also covered in Alexandria’s  federal courthouse the Comey arraignment Oct. 8 before U.S. District Judge Michael Nachmanoff, above right, at a proceeding that Comey’s family also attended.

They are shown below in a JIP photo after Comey’s arraignment. They include the defendant’s daughter Maureen Comey, below left, who was — until her firing on July 16 — a well-regarded career Justice Department prosecutor who had helped lead the investigation of sex traffickers and onetime Trump friends Jeffrey Epstein and Ghislaine Maxwell, below right, among other high-profile defendants.

The JIP project was founded in 2010 to report on such complex cases after this reporter, Andrew Kreig, was appointed as a senior fellow by Schuster Center for Investigative Reporting at Brandeis University in 2009 to research suspected political prosecutions by federal attorneys following the so-called U.S. attorney firing scandal of 2006.

News reports then indicated that at least eight presidentially appointed U.S. attorneys were fired in 2006 for their alleged failure to file weak cases against political targets and/or to protect allies of President George W. Bush’s administration. But few news organizations possessed the resources to examine in depth that nationwide pattern whereby career-minded federal prosecutors kept their Justice Department jobs by indicting and then imprisoning political targets on flimsy evidence.

JIP — which has operated independently of the now-closed Schuster Center for more than a dozen years and which expanded its mission to civic topics globally impacted by corrupt prosecutions –  endorses the expert conclusions summarized above about the Comey and James prosecutions. The basis for those conclusions are cited in more depth below, with the news reports and analysis divided into three major sections: 

• Selective or Vindictive (Political) Prosecutions Threatening Democracy
• Comey Prosecution: In Depth
• James Prosecution: In Depth

The Comey Case

James Comey, left, a former high-ranking Justice Department executive, served as the FBI’s seventh director from 2013 until his termination in May 2017. 

President Trump for years has denounced Comey because of Comey’s failure to provide personal loyalty to the president during the FBI’s investigation of Russian interference during the 2016 presidential elections. Trump used his Truth Social Account, for example, to claim: 

“One of the worst human beings this Country has ever been exposed to is James Comey, the former Corrupt Head of the FBI”, and also saying the case is about “justice not revenge.”

Additionally, Trump wrote U.S. Attorney Gen. Pam Bondi, right, a public message on his site Truth Social instructing her to take action because in his mind Comey, New York Attorney General Letitia James and U.S. Sen. Adam Schiff are “all guilty as hell, but nothing is going to get done.”

On Sept. 25, the Trump administration reshuffled the leadership of its federal district based in Alexandria and persuaded 14 members of a 23-member federal grand jury in Alexandria to indict Comey on one charge of making false statements during congressional testimony about the Russia investigation and one charge of obstruction.

Comey, a lifelong Republican until recent years (as have been all FBI directors since the bureau and its predecessor were created in the 1920s), promptly released a video vigorously asserting his innocence, and pleaded not guilty at his arraignment.

The James Case

Letitiia James, a Democrat, has served since  2019 as the 67th New York Attorney General following her 2018 election. The first female and first African American to be elected to that office, she led it in filing a civil suit against Trump that resulted in penalties and a fine of more than $400 million on findings of fraud his New York businesses and tax filings. A divided appeals court upheld Trump’s liability but voided the penalty as excessive, pending appeals to New York’s highest court. 

After pressure from Trump and an appointee who has been scouring federal mortgage records to find evidence against officials whom Trump opposes Trump’s newly appointed interim U.S. attorney for the Alexandria-based Eastern District of Virginia (EDVA) Lindsey Halligan, left, obtained a grand jury indictment of James on Oct. 9 accusing the defendant of one court of bank fraud and one false statement count regarding a mortgage James held on what she allegedly described as a second home in Norfolk, Virginia.

Authorities charged that James stood to save more than $18,000 over the life of the mortgage if it were a rental and investment property, not a “second home.” 

Like Comey, James has vowed in a video statement and otherwise to prove her innocence regarding the charges, which the New York Times has reported as involving a home occupied by a grand-niece of James largely rent-free and visited by James several times per year. 

Also like the Comey case, a number of career prosecutors recommended against charging James because of weak evidence and serious procedural problems. In fact, so many prosecutors refused to participate in either the Comey or James charges that some were fired and/or refused to sign prosecution documents, thereby requiring the inexperienced Halligan to serve as lead attorney in court and be helped most visibly of two assistant U.S. attorneys (AUSAs) brought in from North Carolina specifically to answer court questions in the Comey arraignment last week so she would not have to do so, even though they were themselves brand-new to the case.

Rocket Docket Looms As Big Problem For Prosecutors

The unusual nature of the prosecution of the two cases (and any others expected to arise soon from Trump’s revenge against those he calls his enemies or opponents) is becoming an especially dramatic high-stakes spectacle because the Alexandria federal courts apply a rare procedure, the so-called “Rocket Docket,” whereby federal litigants are required to file speedy motions and otherwise conduct speedy trials in criminal cases.

Nachmanoff, the Comey trial judge, set Jan. 5 as the trial date, for example. He ordered also an aggressive schedule of pre-trial motions with first filing date of Sunday, Oct. 12, just four days after the arraignment and with other deadlines Oct. 13 and soon thereafter. These include filings on complex matters that might typically take a year or more to file and adjudicate.

Experts describe the speedy procedures in Alexandria’s federal courthouse (shown at right in a JIP photo on the date of Comey’s arraignment) as intended in part to resolve caseloads that might involve espionage or other important national security installations in the jurisdictions. The CIA is headquartered in nearby McLean, VA, for example, and works like other such agencies with many employees, contractors and others that populate the area.  

The general assumption in legal circles is that speedy schedules help prosecutors, who usually can take years to prepare their cases if necessary and draw on the Justice Department’s vast resources of more than 100,000 employees while defendants might remain in the dark about specifics. Nationally, the DOJ’s inherent advantages enable it to achieve a conviction rate of some 98 percent nationally of those charged. The vast majority of defendants seek plea deals or incur jury convictions. 

In this instance, however, experts describe the rapid process as likely helping the defendants.

One reason is that Comey and James are experts in trial preparation and related law enforcement procedures. Each also has retained expert defense counsel. Former federal prosecutor Patrick Fitzgerald, left, who led many high-profile prosecutions before his retirement, told Nachmanoff’s courtroom that it was his “honor of a lifetime” to advocate for Comey in his case.

New York’s Attorney Gen. James is represented by Abbe Lowell, right, whose clients have included Trump’s son-in-law Jared Kushner and President Biden’s son Hunter Biden. Lowell recently resigned from a national law firm to found a practice specializing in high-profile whistleblowers and victims of political prosecutions.

By contrast, Halligan practiced civil insurance law before helping defend Trump in a House impeachment action. She joined the White House during the current administration and received what has been described as an interim appointment from Trump to lead Eastern District of Virginia staff of some 200 attorneys when its leaders declined or otherwise proved reluctant to push forward against Trump’s targets.

One leader who resigned was Erik Siebert, a career prosecutor of conservative background and the son-in-law of Virginia Gov. Glenn Youngkin, left, a Republican and conservative. Siebert’s nomination also had been endorsed by Virginia’s two U.S. senators, both Democrats. Siebert is shown above at center in an unrelated case, accompanied by Youngkin and Bondi.

The reluctance of Halligan’s staff to assist her prosecution showed up visibly when the grand jury rejected one proposed count against him, and her paperwork was so sloppily written that the judge questioned her on why he had received two sets of grand jury paperwork, one mistakenly describing two different “Count Two” as charges.

Halligan’s performance on the paperwork and in court underscored her inexperience and the implied reluctance of professional staff to proceed as normal in assisting their new boss with these prosecutions.  

More substantively, experts have opined that Halligan’s staff will face a difficult time providing timely and persuasive responses to defense motions, particularly because the evidence against both Comey and James is regarded as so weak as to make convictions unlikely.

Conservative commentator Andrew C. McCarthy, right, promptly made that argument in a Sept. 26 column published by the National Review headlined The Indictment Against Comey Should Be Dismissed, arguing that the evidence against Comey was so weak that the judge should dismiss the charges before trial. 

On the same date, McCarthy’s conservative colleague Ed Whelan published in the National Review a column arguing that the prosecution should be dismissed before trial on separate procedural grounds that invalidate the indictments of Comey, James and anyone else that Halligan prosecutes on the grounds that her appointment is invalid.

Whelan’s column –  Was Lindsey Halligan Validly Appointed as United States Attorney? – cites a 1980s Justice Department legal memo authored by future Supreme Court Justice Samuel Alito, right, stating that a president cannot name two interim U.S. attorneys in a row, as Trump seemed to have done by appointing Halligan to succeed her predecessor Siebert without either Senate or local court confirmation.

Commentaries below provide a more in-depth analysis of these and related issues. The Justice Integrity Project is a paid subscriber to nearly all of the subscription services cited below, and highly recommends that our readers similarly support the commentators efforts as either paid or free subscribers.

Some of the analysis below is doubtless too detailed for general readers. But it is vital to the justice system that someone capably undertake such work and in a timely fashion.

As one pertinent example, the national security expert Marcy Wheeler, who holds a doctorate granted from the University of Michigan and blogs under the name “Emptywheel,” published a column Oct. 12 that analyzed a legal filing submitted that same day, a Sunday, by the Comey prosecutors as their first submission in the case.

She opined that the filing showed that Justice Department prosecutors were stalling tactics on required discovery in a way likely to irritate the presiding judge as well as the defensein a Rocket Docket case, particularly because the judge had given a reasonably clearcut order one deadlines and the government’s response Oct. 12 was more than two weeks after the indictment and just days before the first defense filing was scheduled. The missing information? Defense counsel were saying they still did not know who Comey supposedly instructed to leak information to the news media about the Russian interference probe. Not irrelevant to this is that two main widely suspected leakers, former Deputy FBI Director Andrew McCabe and Comey’s friend Daniel Richman, a law professor, have each denied they said anything to the media on Comey’s instructions or suggestion.

Wheeler noted also that the prosecution’s first filing was so sloppily drafted by the two prosecutors imported from North Carolina that they managed to misspell the word “Carolina” on the government’s signature page, as shown below. 

 

Anyone can make a typographical mistake. Yet this one seems to symbolize much more given the historic nature of the case and the serious questions about whether the prosecution is legally valid, just, fair or corrupt. As show below, expert commentators are already suggesting that the prosecutors involved may face legal sanctions for misconduct. 

  

Contact the author Andrew Kreig

Selective or Vindictive (Political) Prosecutions and Threats To Democracy

Oct. 10

The Bulwark Morning Shots, Opinion: The Insidious Effort To Rationalize Trump’s Lawfare, William Kristol, right, and Andrew Egger, Oct. 10, 2025. This is not a president justified in going after those who went after him. It’s a person making a mockery of our justice system.

Donald Trump and Greg Abbott’s deployment of Texas National Guardsmen to Chicago has hit a legal wall—for now. A federal judge in Illinois handed down an order Thursday night temporarily blocking the deployment, saying she had seen “no credible evidence that there is a danger of a rebellion in the state of Illinois.”

How the president will respond remains to be seen. An appeal is all but certain, but Trump has also contemplated more extreme measures: If judges kept getting in his way, he said this week, he might just be forced to invoke the Insurrection Act. What a fun weekend activity, anticipating this!  

Democracy Docket, Opinion: The era political prosecutions has arrived, Marc Elias, right, Oct. 10, 2025.Yesterday’s indictment of New York Attorney General Letitia James shocked many people who should hardly be surprised.

For months, I have complained that far too few people were taking Donald Trump’s threat to use the Department of Justice to prosecute his political opponents seriously. Even after this indictment, I fear too many will continue to underestimate the threat.

We are not approaching a constitutional crisis; we are in one. We are not risking authoritarianism; we are experiencing it. We are not crossing the Rubicon; that famous river is so far behind us that our shoes and clothes have completely dried during the journey.  

Legal AF via Substack, Commentary: Trump TERRIFIED as Pet Prosecutor GAMBLES with HER LAW LICENSE, Michael Popok, Oct. 10, 2025. Blind ambition is on full display, as Trump’s pet Lindsey Halligan decides to take a job that under the ethics of her Bar License sheshould have turned down, and now that her independent judgment required has been compromised by her client Trump, she has put her law license at serious risk.

Popok explains that not only will James Comey’s lawyers be filing a knock blow of a motion to disqualify her in the coming days, but she may head the list of Trump lawyers who have felony convictions and / or lost their bar licenses as well.

Oct. 9

Lincoln Square Media, The Collapse of Guardrails: America’s Rapid Democratic Erosion, Brian Daitzman, Oct. 9, 2025. In September, subpoenas, indictments, and Supreme Court rulings converged to shield the presidency and target its critics, revealing a constitutional rupture.

In September 2025, the constitutional crisis that has been building since Donald Trump’s first run for office in 2015 reached its most dangerous turn. The Supreme Court’s 2024 decision granting sweeping presidential immunity, followed by its 2025 order allowing the executive to withhold billions in congressionally approved foreign aid, converged with high-profile arrests and subpoenas of Trump’s critics. Together, these moves have left a convicted felon president looming above the checks of all three branches of government. The guardrails the framers designed to contain authoritarian impulses are buckling, eroded by a politics of demagoguery and deception — the very danger they warned against in the Federalist Papers.

That crisis sharpened on the night of September 26, with a cascade of developments unprecedented in modern American history. The Justice Department issued a subpoena for travel records tied to Fani Willis, the Georgia prosecutor who once charged Trump. Hours earlier, former FBI director James Comey was indicted by a federal grand jury for alleged false statements and obstruction of Congress. Court filings revealed that federal agents had seized documents marked “classified” from the office of John Bolton, Trump’s onetime national security adviser turned critic. Rarely, if ever, has a sitting president’s circle of opponents faced such simultaneous legal jeopardy. A rupture in the American experiment, unfolding in real time.

The events of the end of September are extraordinary because they have no true analogy in American history.

The United States has seen bitter partisan conflict, from Jefferson and Adams to McCarthy and Watergate, but never has the machinery of federal justice moved in concert against multiple perceived political opponents of a sitting president at once. That inversion defines September 2025: prosecutors, investigators, and regulators who previously challenged Donald Trump now face subpoenas, indictments, or removal efforts.

This is not coincidence.

It is the outcome of a legal and institutional shift that began with the Supreme Court’s Trump v. United States ruling in 2024, which granted presidents broad immunity for official acts. And it is deepened by the Court’s decision just this Friday to allow the administration to withhold nearly $4 billion in foreign aid despite congressional appropriation, eroding Congress’s oldest power: the power of the purse.

Together these actions mark not just political conflict but democratic decline. What James Madison described as ambition checking ambition is failing. The scaffolding is giving way. America is watching the collapse of its guardrails not in history books, but in the present tense.The Unprecedented Targeting of a President’s Opponents

The United States has experienced political vendettas before, but never this: the sitting president’s critics and former accusers facing indictments and subpoenas within the same week. Fani Willis is the elected district attorney of Fulton County, Georgia, and in 2023 she indicted Donald Trump and 18 allies under the state’s racketeering statute for their efforts to overturn the 2020 election results. That case collapsed in 2025 after Georgia’s Supreme Court disqualified her for a conflict of interest tied to a relationship with a deputy prosecutor. On September 26, she received a federal subpoena for her travel records. The timing is stark: the prosecutor of a president is now herself the target of federal inquiry.

James Comey’s path is equally emblematic. Appointed FBI director by Barack Obama in 2013 and retained by Trump, he was fired in 2017 after publicly confirming that the Bureau was investigating links between Russia and Trump’s campaign. He later became one of Trump’s most visible critics in print and on television. On September 26, 2025, the Department of Justice indicted him on charges of obstruction and false statement. Supporters of the indictment say it proves no one is above the law. Critics see it as revenge seven years in the making.

Trump’s defenders will say this is accountability, not revenge, and Trump himself will argue he is the victim. The public record cuts the other way. During the Biden administration, the president’s son, Hunter Biden, stood trial and was convicted by a jury on three federal gun charges in June 2024. The special counsel probing President Biden’s handling of documents issued a detailed report and recommended no charges, noting cooperation and interviews under oath.

By contrast, Trump fires officials who resist him, demands prosecutions of named rivals, and now presides over a Justice Department that indicts his former FBI director while federal agents search the office of a former national security adviser turned critic. The pattern is not symmetrical. One administration subjected its own family to a lawful process and accepted an adverse verdict. The other seeks to criminalize its opponents while insulating the presidency itself.

John Bolton, Trump’s former national security adviser, resigned in 2019 after disputes over Iran and Afghanistan and went on to publish a memoir, The Room Where It Happened, that accused Trump of misconduct in office. Court filings now link his office to classified documents. George Soros, the Hungarian-born financier who funds voting access, civil society, and progressive causes, has long been a favorite target of Trump’s allies. Reports indicate prosecutors are being pressed to consider charges against him. And Lisa Cook, an economist confirmed to the Federal Reserve Board in 2022, is under DOJ investigation and a White House filing that seeks her removal. She is the first Black woman to serve as a Fed governor, and her independence has made her a visible counterweight to Trump’s economic agenda.

Each case differs in substance, but together they create a picture without precedent: the machinery of justice trained not on the president but on his political opponents. Hannah Arendt warned that authoritarianism begins when independence is redefined as disloyalty. That redefinition is unfolding now, as the critics of yesterday become the defendants of today.

Takeaway: Never before has an American president’s adversaries faced simultaneous prosecution. The inversion marks a constitutional rupture, visible in the present tense.  

Oct. 8 

New York Times, How Trump Is Using the Justice Department to Target His Enemies, Alan Feuer and Lily Boyce, Oct. 8, 2025. From the moment Donald J. Trump began his campaign to return to the White House, he has expressed a clear desire to seek vengeance against his enemies.

He has complained relentlessly about the multiple cases filed against him during the Biden administration and has used them as a justification for seeking retribution, arguing that the Justice Department was “weaponized” against him under his predecessor.

In power, Mr. Trump has now weaponized the department to his own ends, critics say, in a more direct manner than any president since the Nixon era. His calls for prosecutors to file criminal charges against his adversaries have eroded the Justice Department’s decadeslong tradition of independence from the White House and threatened the rule of law.

The Justice Department, now led by Mr. Trump’s former personal lawyers, has fired dozens of career prosecutors, many of whom had worked on cases involving Mr. Trump. And the president and his allies have targeted or pushed out several U.S. attorneys as he seeks quick movement on cases involving a number of his foes.

Each of the targets Mr. Trump has pursued through the Justice Department has denied wrongdoing, in statements or through lawyers. Here is a look at them:

• James Comey, Former FBI Director
• Open Society Foundations: Global grant network founded by George Soros
• Fani Willis: District attorney Fulton County, Ga.
• John O. Brennan: Former C.I.A. director
• Adam B. Schiff, Senator, Democrat of California
• Letitia James. Attorney general of New York

Oct. 7

Attorney General Pam Bondi in 2025, U.S. Department of Justice.

Lawfare, Analysis: The Comey Indictment and Selective or Vindictive Prosecution, Ema Rose Schumer, Oct. 7, 2025. A primer on the powerful legal tools and the high evidentiary burden placed on defendants to use them successfully.

The indictment of former FBI Director James Comey on charges of making false statements to Congress and obstructing a congressional proceeding touched off furious allegations and widespread concern that President Donald Trump’s Justice Department is pursuing a campaign of personal retribution.

Days before a grand jury indicted Comey, Trump urged Attorney General Pam Bondi to bring criminal charges against Comey and several of the president’s Democratic rivals, writing on Truth Social, “We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!” The president fired off the post a day after the U.S. attorney for the Eastern District of Virginia resigned, reportedly for refusing to bring the case against Comey due to inadequate evidence.

Analysts have observed that these facts offer Comey potentially powerful tools in defending against his prosecution—claims of selective or vindictive prosecution. These claims, which are brought in the form of motions to dismiss, are intended to provide legal remedies to certain types of prosecutorial misconduct.

But it is notoriously difficult for defendants to prevail on selective and vindictive prosecution motions. The executive branch enjoys broad prosecutorial discretion under long-standing interpretations of the Constitution’s Take Care Clause. And under the presumption of regularity, a general principle applied to cases involving executive discretion, courts presume that “in the absence of clear evidence to the contrary,” officials “have properly discharged their official duties.”

Still, courts have recognized certain constitutional constraints on the executive branch’s power to prosecute individuals—specifically, the protections afforded to criminal defendants under the Equal Protection Clause and the Due Process Clause. Selective prosecution motions invoke the former; vindictive prosecution motions invoke the latter. In practice, both kinds of claims are difficult to prove and involve burdensome doctrinal hoops. Whether Comey would succeed on either claim, then, is far from certain.

What Is Vindictive Prosecution?

Vindictive prosecution arises when a prosecutor uses the charging system to penalize a defendant for having exercised his legal rights. The Supreme Court stated in a 1978 case involving a claim of vindictive prosecution that to punish someone “because he has done what the law plainly allows him to do is a due process violation of the most basic sort.”

To succeed on a vindictive prosecution claim, a defendant must either (a) prove that a prosecutor actually charged the defendant to retaliate against the individual for exercising his legal rights or (b) show facts sufficient to create a “realistic likelihood of vindictiveness,” which creates a presumption the government must then rebut by justifying its charging decision.

In the absence of a presumption of vindictive motive, a defendant must show that charges were brought solely to punish him and could not be justified on other grounds—an exacting standard.

The Supreme Court held in Bordenkircher v. Hayes that a prosecutor did not violate due process when he carried out a threat made during plea negotiations that he would seek to indict the defendant on a more serious charge if the defendant exercised his right to trial. The Court stated there is no element of punishment in the “give-and-take negotiation” of plea bargaining, where the prosecutor’s goal is to persuade a defendant to give up his right to a trial and the defendant is free to accept or reject the prosecutor’s offer.

Even if a defendant does not provide actual evidence of a prosecutor’s retaliatory motive, the Supreme Court in Blackledge v. Perry established that a defendant can make out a vindictive prosecution claim by presenting facts that “pose a realistic likelihood of vindictiveness.” The Supreme Court subsequently framed its decision in Blackledge as creating a “legal presumption of prosecutorial vindictiveness,” which the government can rebut by justifying the reasons for its charging decision.

In the Blackledge case, the Supreme Court held that a presumption of vindictive motive arose when a prosecutor secured a felony indictment against a defendant convicted of a misdemeanor after the defendant received a new trial before a higher court. The Supreme Court reasoned that the opportunities for vindictiveness were significant in situations where a prosecutor with “a considerable stake” in discouraging a defendant from exercising his right to appeal his conviction has the ability to deter such appeals by “upping the ante”—filing more serious charges. The Blackledge court suggested in a footnote that it would not have dismissed the felony charge if the prosecution had shown it was “impossible to proceed on the more serious charge at the outset.”

Notably, the presumption of vindictiveness generally does not apply in a pretrial setting. In United States v. Goodwin, the Supreme Court held that changes in charging decisions during the early stages of criminal proceedings are less likely the result of retribution and more likely the result of developing understandings of the significance of a case.

Attorneys for Trump argued in 2023 that his indictment in the election interference case should be dismissed for vindictive prosecution, calling the case “a straightforward retaliatory response to” Trump’s constitutional right to criticize the government. They argued specifically that Department of Justice Special Counsel Jack Smith filed federal charges against Trump in the District of Columbia after Trump had exercised his constitutional right to plead not guilty in a criminal case in Florida, which was also brought by the special counsel.

U.S. District Judge Tanya Chutkan denied the motion, ruling that under the totality of the circumstances, Trump had failed to meet the threshold standard that his indictment was “more likely than not attributable to the vindictiveness on the part of the Government.”

Trump, the judge stated, did not “proffer a single evidentiary link between” his indictment and his public criticism of the 2020 election and then-President Joe Biden. Factors Chutkan weighed against Trump’s argument that the government retaliated against him for pleading not guilty in the Florida case were the distinct, independent bases of the prosecutions in Florida and D.C.—the Florida case pertained to Trump’s handling of classified documents, while the case in D.C. pertained to Trump’s efforts to overturn the 2020 election results—and the Supreme Court’s holding in Goodwin that a change in charging decision after a defendant exercises a pretrial procedural right is insufficient to create a presumption of vindictive motive. The holding was not tested on appeal because the Justice Department later dismissed all charges against Trump.

More recently, one federal district court judge found the Trump administration’s actions in another criminal case created a presumption of vindictive prosecution. A U.S. district judge in Tennessee held on Oct. 3 that the circumstances surrounding the indictment of Kilmar Armando Abrego Garcia, an immigrant wrongfully deported by the Trump administration to El Salvador and then brought back to the United States to face fresh criminal charges, created a “realistic likelihood of vindictiveness.” Judge Waverly D. Crenshaw Jr. ordered discovery and an evidentiary hearing in the case.

The judge found that Abrego Garcia’s attorneys offered facts sufficient to establish a presumption of vindictiveness by (a) showing the government had a “significant stake” in retaliating against Abrego Garcia for legally challenging his deportation and (b) showing the prosecution’s actions were unreasonable. Regarding the latter, the judge highlighted the timing of the government’s actions. Abrego Garcia’s indictment on charges of conspiracy and unlawfully transporting noncitizens centered around a Homeland Security investigation into a 2022 traffic stop in which Abrego Garcia was discovered driving individuals who were in the country illegally. Homeland Security’s investigation into Abrego Garcia remained pending for more than two years, closed—without referral for prosecution—three days before the government deported him to El Salvador, and reopened a week after the Supreme Court affirmed a district court order requiring the government to “facilitate” Abrego Garcia’s release from custody in El Salvador.

The judge pointed to administration officials’ own words as strongly suggestive of their vindictive motive. “Most tellingly,” the judge noted, Deputy Attorney General Todd Blanche “strikingly” stated during a television interview that the government reopened its investigation into Abrego Garcia after a judge presiding over Abrego Garcia’s lawsuit challenging his removal ruled against the government—direct evidence connecting the government’s prosecution to Abrego Garcia’s exercise of his legal right. While those comments “could directly establish” prosecutors indicted Abrego Garcia to retaliate against him, the judge stated the defendant had sufficiently met the lower standard of proving a presumption of vindictiveness that entitled him to discovery and a hearing.

Comey will have to prove as a threshold matter that his indictment was “more likely than not attributable to the vindictiveness on the part of the Government.” Comey’s lawyers may argue that Trump’s Truth Social post provides direct evidence that the prosecution against Comey was motivated by animus, and but for such animus, the Department of Justice would not have indicted Comey. Two factors weigh in Comey’s favor: first, Trump has publicly railed against Comey for nearly a decade because the former FBI director opened an investigation into Russia’s interference in the 2016 election and the Trump campaign; and second, the U.S. attorney investigating Comey was forced out of his role because he did not believe there was sufficient evidence to bring charges. Even if those facts established a presumption of vindictive motive, the government must show only that there were legitimate reasons for its conduct.

What Is Selective Prosecution?

Selective prosecution occurs when the government pursues criminal charges against a defendant not in response to the alleged criminal conduct, but for invidious purposes, such as targeting individuals because of their religion, race, or other impermissible factors. The Supreme Court stated in Oyler v. Boles that “the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classifications.”

Rooted in the Equal Protection Clause of the Fifth and Fourteenth Amendments, the doctrine embodies the constitutional principle that the government may not single out one defendant for prosecution while overlooking others who engaged in the same conduct, unless it has a legitimate, non-discriminatory reason for doing so. The Supreme Court first articulated this principle in 1886, holding that a selective prosecution claim arises when the law is “directed so exclusively against a particular class of persons” and applied “with a mind so unequal and oppressive” that the prosecution amounts to “a practical denial of equal protection of law.”

To establish a selective prosecution claim, the Supreme Court in Wayte v. United States articulated a two-part test: A defendant must demonstrate that the prosecutorial discretion (a) caused a discriminatory effect and (b) was driven by a discriminatory purpose.

To prove the prosecution’s discriminatory effect, the defendant must show that the prosecution did not indict a “similarly situated” individual. In the landmark case United States v. Armstrong, the Supreme Court explained that a person is considered similarly situated when they are in comparable circumstances, such as having engaged in the same criminal conduct while subject to the same state or local laws. In Armstrong, the defendants, who were indicted on charges of selling drugs and discharging a firearm, contended that the prosecution was racially selective. The Supreme Court held the defendants failed to satisfy the first prong because they produced no evidence that individuals of a different race who engaged in similar conduct were not prosecuted for the same offenses.

To satisfy the second prong of a selective prosecution claim—discriminatory purpose—a defendant must show that the prosecution was brought “because of” a protected characteristic or activity, and not merely “in spite of” it. In Wayte, which involved a 1980 draft registration law, the claimant argued he was criminally charged for failing to register for the draft because of his protest activities. The Supreme Court found, however, that the government applied draft-registration laws uniformly, prosecuting all reported nonregistrants without imposing any special burden on anti-war protesters. The petitioner thus failed to prove the prosecution was brought because of the defendant’s political activities and the second prong of discriminatory purpose was not satisfied.

Notably, the Armstrong court underscored the broad discretion afforded to prosecutors and imposed a high evidentiary burden on defendants. Concerned that allowing unfounded or speculative claims could impose heavy burdens on the executive branch and chill legitimate law enforcement efforts, the Court required defendants to present “clear evidence” of both discriminatory effect and purpose before obtaining discovery. The central paradox of this rule is that defendants are required to prove the prosecution’s intent, which is often inaccessible without discovery, before discovery is granted, leading some legal scholars to characterize the rule as a “Catch-22” dilemma. Indeed, selective prosecution motions, in practice, have proven largely illusory; defendants have prevailed in approximately three dozen cases over the past 50 years.

The difficulty prevailing on selective prosecution claims was illustrated recently in United States v. Rundo, a case against members of the white supremacist group Rise Above Movement (RAM) who were indicted for conspiracy to violate the Anti-Riot Act and for substantively violating the Act after violently attacking counterprotesters. The district court dismissed the indictment on selective prosecution grounds; however, on appeal, the U.S. Court of Appeals for the Ninth Circuit reversed.

According to the appellate court, the defendant failed to satisfy either prong of the selective prosecution test. He argued that far-left Antifa members present at the same protests were not prosecuted, but the Court found that they were, in fact, prosecuted for their own offenses. Thus, the defendant failed to show discriminatory effect because others who were similarly situated were also prosecuted.

The Ninth Circuit also rejected the argument that the timing of the arrests, occurring after the death of a left-wing protester, indicated improper motive, thus finding no discriminatory purpose. The Court stated that the federal government “is permitted to set its own ‘enforcement priorities’ and create an overall ‘enforcement plan’ if it has a legitimate reason to do so.”

In a selective prosecution claim, Comey will face significant hurdles proving the discriminatory effect of the Justice Department’s indictment and the government’s discriminatory purpose—“clear evidence” of which is required to access discovery.

Demonstrating discriminatory effect through “similarly situated” individuals will be particularly challenging for Comey, as courts demand they be nearly identical in relevant circumstances. But Trump’s Truth Social post from Sept. 20 may serve as potential evidence of discriminatory purpose. Trump’s demand that Bondi prosecute Comey, New York Attorney General Letitia James, and Sen. Adam Schiff (D-Calif.), paired with his reference to his own criminal cases, could serve as evidence that the Trump administration is targeting individuals for prosecution because they are the president’s political opponents. The government could counter that Trump’s tweet undermines a discriminatory effect argument, as the inclusion of multiple individuals shows that prosecution is not limited solely to Comey.

Comey might also point to the timing of the indictment, which was secured just before the statute of limitations was set to expire. Yet, as the Ninth Circuit in Rundo emphasized, the government maintains broad discretion in setting its enforcement priorities and timing alone is insufficient to establish bias.

***

Trump’s public pressure on his Justice Department to aggressively prosecute his political enemies may provide an avenue for Comey to challenge his indictment on grounds of vindictive and selective prosecution.

That the facts surrounding Comey’s prosecution are dissimilar to those of traditional vindictive and selective prosecution claims does not foreclose challenges to his indictment on such grounds. Indeed, Trump’s public comments have shattered norms that the White House refrains from commenting on active Justice Department investigations. Nonetheless, they may be insufficient to prove selective and vindictive prosecution given the high evidentiary burden placed on defendants to overcome courts’ presumption that law enforcement exercises discretion in good faith.

Comey Prosecution: In Depth

Oct. 12

Emptywheel, Analysis: “Sensitivities and Exposure:” Six Stupid Things about Lindsey Halligan’s First Filing, Emptywheel (Marcy Wheeler, Ph.D., right), Oct. 12, 2025. Lindsey the Insurance lawyer and her two loaner AUSAs didn’t do so well on their first filing.

I already noted that, after Judge Michael Nachmanoff issued an order setting Monday as the deadline for prosecutors to provide Jim Comey all the discovery in his case, prosecutors submitted what they fashion as a Motion for a Discovery Order.

I was going to leave the filing well enough alone. Either Pat Fitzgerald or Judge Nachmanoff will respond later today, when things will get interesting. But there are a number of stupid things about the filing I can’t shake.

1) First, the prosecutors (it was submitted by Gabriel Diaz) do not fashion this as a motion for reconsideration. They just … pretend that Nachmanoff’s order doesn’t exist, and pretend they’re submitting this for the first time. That seems like a spectacular way to infuriate a judge.

2) They’re asking for two deadlines — October 14 for the things pertaining to the vindictive prosecution motion and October 20 for everything else, a transparent attempt to keep things from Comey,  left, that might be pertinent to his vindictive prosecution motion.

Part of their justification for filing this is that the parties had not reached an agreement and so they were following Nachmanoff’s order to submit competing versions on Monday.

On October 8, 2025, the Court ordered “the parties immediately confer regarding the entry of a joint discovery order” and further ordered “that if after good faith discussions the parties are unable to agree on and file a joint discovery order by Friday, October 10, 2025, . . . the parties shall each submit a proposed discovery order by Monday, October 13, 2025, at 5:00 p.m. D.E. 24.

But then, in a high school debate-worthy footnote, they suggest that Monday couldn’t be the deadline because it’s not five business days before the first pretrial motion deadline, since it’s a holiday.

Following the Court’s orders regarding discovery at docket entries 28 and 29, the Government conferred with Defense as to what the discovery deadline is. The Defense position was that, per the Court’s Order, discovery could have technically been due on Friday, October 10, 2025. But the notion that discovery was due prior to the Court entering a discovery order is not plausible. Alternatively, the Defense identified October 13, 2025, as the due date. This date is a Federal Holiday and is also inconsistent with the discovery order from this Court that lists discovery as due five business days before the pretrial motion deadline.

You’re already treating Monday as a business day!! Your entire premise here — that Fitzgerald, right, should have held off on filing until Monday — is that you’re working on Monday.

3) Elsewhere — apparently in an attempt to suggest they were being really nice by letting Comey submit a second set of pretrial motions on October 30 — they describe that the default pretrial motion deadline going into last week’s hearing would have been October 22.

The defendant requested, the government agreed, and the Court ordered two motions Deadlines, October 20, 2025, and October 30, 2025. Notably, EDVA Local Criminal Rule 12 states that pretrial motions should be filed within 14 days of the arraignment. Here, the 14 day deadline would have been October 22.

This amounts to a confession that the default deadline for discovery going into last week’s hearing would have been five business days before October 22, or October 17. Prosecutors provide no explanation why they need an extra five days simply because Comey has two sequential pretrial motions.

4) They describe that Comey wouldn’t discuss the discovery order on October 7 when — for the first in the 12 days since Comey had been indicted — prosecutors first reached out, because Comey’s team first demanded to know who the people described in the indictment were.

At that time, the government discussed with the defendant the proposed standard EDVA discovery agreement and a discovery protective agreement. At the initial discussion the defendant would not agree until the government provided information on the U.S. Attorney’s appointment and the identities of PERSON 1 and PERSON 3 on the Indictment.

Remember: Pat Fitzgerald said three different times in the arraignment the next day that he still hadn’t been told who these people were. So Diaz is effectively confessing that prosecutors wouldn’t — perhaps couldn’t — describe who these people were.

5) The only justifiable reason they give for delay is that the two sides have yet to agree on a protective order, which they claim is really important because of “the sensitivities and exposure associated with this prosecution.”

Additionally, the parties have yet to agree on a discovery protective agreement. Considering the sensitivities and exposure associated with this prosecution, a discovery protective agreement is a vital part of the overall discovery plan.

[snip]

On the afternoon of October 9, 2025, the defendant emailed back the government’s proposed protective agreement with significant proposed edits.

[snip]

Consistent with the Court’s direction at arraignment, the parties have also conferred regarding a discovery protection agreement. The government provided a past template used in the Eastern District of Virginia. The Defense made substantial edits, and the government agreed to those edits in large part. However, the parties still lack agreement as to whether the discovery can be provided and retained by the Defendant.

But they don’t provide the protective order (AKA “protection agreement”) with this filing. By their logic, they’re refusing to turn over discovery until they have one. By not turning it over, they’re ensuring that they cannot meet the currently set deadline of Monday.

6) Finally, they spelled North Carolina wrong.

Oct. 11

Emptywheel, Analysis: Emptywheel, Analysis: Prosecutors Sucking Lemons in Their Vindictive Prosecution of Jim Comey, (Marcy Wheeler, right), Oct. 11, 2025. In this post, I noted a paragraph of a recent ABC story that had escaped much notice: one reason prosecutors didn’t think they would succeed in prosecuting Jim Comey (shown above in a file photo)was because there would be too much discovery.

Prosecutors further expressed concerns about the department’s ability to take the case to trial quickly due to problems identifying all the relevant materials that would need to be handed over to Comey’s lawyers, sources said.

I speculated that one reason the prosecutors borrowed from Raleigh — Tyler Lemons and Gabriel Diaz — claimed there would be extensive classified information was to stall for time.

Such efforts are already failing. At the arraignment, Judge Michael Nachmanoff, right, ordered the two sides to come up with a discovery order by Friday or submit their competing sides Monday.

Yesterday, Comey’s lawyers submitted this filing, explaining that they had immediately signed the standard discovery order, but had yet to receive a signed copy back.

As described, the two sides disagreed about one issue, what pretrial motion date would govern: the deadline for his Vindictive and Selective Prosecution claim (so five business days before October 20 — which is Monday), or the one ten days later for his other claims (October 23).

In the course of the parties’ meet and confer, the government sent the defense the standard discovery order attached and the defense signed it with no changes to the government’s proposal and returned it for government signatures on Thursday afternoon, October 9, 2025. To-date, however, the government has not returned a signed copy. While the parties agree to the terms of the standard discovery order, the parties disagree as to an interpretation of one term of the order—specifically, which of the two pretrial motions deadlines prompts the government’s Rule 16(a) production described in paragraph 1, requiring the government to produce certain discovery “no later than 5 business days before the deadline for pretrial motions.” See Exhibit 1 at 1 (emphasis added).

Mr. Comey asserts that the first set of pretrial motions due on October 20, 2025, which the Court ordered at the arraignment hearing, demands that discovery be produced on Monday, October 13, 2025. Naturally, at least some of this discovery will inform the bases for the vindictive and selective prosecution motion that is to be filed on October 20, 2025. As of the date of this filing, the defense has received one page of discovery. The government contends that the term “deadline for pretrial motions” refers to the deadline for the second tranche of pretrial motions, October 30, 2025.

To be able to fully articulate all bases for the first tranche of pretrial motions including the vindictive and selective nature of this case; to be able to effectively defend Mr. Comey; and because it is the plain language of the standard discovery order, Mr. Comey respectfully requests that the Court enter the additional proposed order making clear that “the deadline for pretrial motions” referenced in the standard discovery order is the first pretrial motions deadline of October 20, 2025. [my emphasis]

The part of this that is unmanageable is the requirement that prosecutors provide any statements the former FBI Director made about the matters at issue, which must be epic.

ORDERED that, pursuant to Fed. R. Crim. P. 16(a), no later than 5 business days before the deadline for pretrial motions, the government shall provide to the defense or make available for inspection and copying materials listed below that are in the possession of the U.S. Attorney’s Office for the Eastern District of Virginia.

[snip]

any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the government, the existence ofwhich is known, or by the exercise of due diligence may become known

But the real reason prosecutors attempted this ploy is the requirement that prosecutors provide everything material to Comey’s defense (to say nothing of Brady obligations).

3. The government shall permit the defendant to inspect and copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of his defense

The rest of the ABC piece makes clear some of what that will include:

There’s Dan Richman’s testimony that, contrary to the claim in the charges, Comey had specifically ordered him not to serve as an anonymous source for the press.

Daniel Richman — a law professor who prosecutors allege Comey authorized to leak information to the press — told investigators that the former FBI director instructed him not to engage with the media on at least two occasions and unequivocally said Comey never authorized him to provide information to a reporter anonymously ahead of the 2016 election, the sources said.

[snip]

When prosecutors met with Richman in September, he told them that he never served as an anonymous source for Comey or acted at Comey’s direction while he was FBI director, sources familiar with his interview told ABC News. In at least two cases when Richman asked if he should speak with the press, Comey advised him not to do so, sources said.

As an earlier ABC story reported, it will also include John Durham’s testimony that, in four years of trying, he never found evidence that Jim Comey lied.

John Durham (right), the former special counsel who spent nearly four years examining the origins of the FBI investigation into President Donald Trump’s 2016 presidential campaign and its alleged ties to Russia, told federal prosecutors investigating James Comey that he was unable to uncover evidence that would support false statements or obstruction charges against the former FBI director, sources familiar with the matter told ABC News.

And it’ll also include the testimony of other prosecutors who spent years investigating Comey that they also did not find any evidence he committed a crime.

The prosecutors also met with a team of lawyers at the U.S. Attorney’s Office in Washington, D.C., who had investigated Comey for years — including calling him to testify before a grand jury in 2021 — but were unable to identify any chargeable offenses committed by Comey, sources familiar with the meeting said.

It might even include the declination recommendation submitted to Erik Siebert just days before Trump started demanding prosecutions anyway.

Whether or not Comey’s Vindictive and Selective Prosecution succeeds (as Lawfare has laid out, the legal standard for those is a bit inapt for his case), this testimony would nevertheless provide an opportunity to lay out proof of something that right wingers and NYT reporters continue to deny: Donald Trump did investigate precisely the same people he demands be prosecuted now.

For years.

But some very determined prosecutors concluded that there was no probable cause to charge him.

Without waiting to hear from prosecutors, Nachmanoff filed the discovery order — signed by just Comey’s attorneys — to the docket, and issued an order stating that the earlier deadline applies.

The first pretrial motions deadline in this matter is October 20, 2025. This is the pretrial motions deadline to which the discovery order refers and the date that prompts the government’s Rule 16(a) discovery production.

By Monday, Lemons and Diaz going to have to decide how badly they want to risk their own law license.

• They could move to dismiss the prosecution, the ethical thing to do, but one that will get them fired. And even then, now there’s a matter before Nachmanoff that could force the disclosure of all that anyway.
• They could admit that Lindsey the Insurance Lawyer, right, was not lawfully appointed (the one piece of discovery they did provide is likely her appointment order, which will be enough to prove that she was not lawfully appointed), and therefore the indictment is invalid.
• They could turn over evidence to Jim Comey that shows prosecutors knew there was no probable cause to charge him but did anyway.
• Or they could stall, putting their own careers at risk in a different way.

This dilemma makes it clear why Comey was all smiles last week. It makes it clear why Pat Fitzgerald, right, and not Lemons and Diaz, appeared to be the one directing a prosecution Wednesday.

It even makes his two-phase approach clear. Comey’s case is inapt to existing Vindictive and Selective Prosecution precedents. But what Fitzgerald has done is force an immediate disclosure of this stuff, which he can then use to make arguments that effectively put Lindsey Halligan’s — and through her, Trump’s — behavior on trial, what Fitz described as “a grand jury abuse motion, and outrageous government conduct motion.”

Unless prosecutors find a way to make this problem go away, in nine days, we’ll get details (in the Vindictive and Selective Prosecution motion) of how badly Trump has tried to prosecute Jim Comey, and how those efforts failed, until the moment he unlawfully installed his own defense attorney as US Attorney at EDVA.

One other thing about how this will work.

Remember that Maurene Comey is suing, arguing that she was fired solely because of her dad. I would be unsurprised if she submitted a amended complaint incorporating the vindictive prosecution motion.Reply

One MORE thing: By the time of Tish James’ arraignment, Comey’s selective prosecution motion will be submitted. 

Oct. 10 

U.S. Department of Justice headquarters in Washington, D.C.

Lawfare, The Justice Department’s Dangerously Weak Case Against Letitia James, Molly Roberts, right, Oct. 10, 2025. Lindsey Halligan didn’t have a strong case against Letitia James. She indicted her anyway.

Earlier this week, the Justice Department seemed poised to pursue an indictment against New York Attorney General Letitia James on pathetically weak charges. Yet the charges that actually ended up in the indictment a jury returned on Thursday may somehow be even weaker.

U.S. Attorney for the Eastern District of Virginia Lindsey Halligan—President Trump’s handpicked replacement for Erik S. Siebert after he concluded there wasn’t sufficient evidence to charge either James or former FBI Director James Comey—presented evidence to grand jurors herself in the case.

That’s unusual, and not only because Halligan is an insurance lawyer with no prosecutorial experience; career staff would typically do the job of presenting, but in this case as in Comey’s, they balked. In fact, Halligan reportedly didn’t even inform Attorney General Pam Bondi or the main Justice Department the indictment was coming.

No wonder.

The criminal referral that Federal Housing Finance Agency Director Bill Pulte sent to the Justice Department in the spring alleged that James might have violated the wire fraud statute (18 U.S.C. § 1343), the mail fraud statute (8 U.S.C. § 1341), the bank fraud law (18 U.S.C. § 1344), and a law against false statements to a financial institution (18 U.S.C. § 1014) when she applied for mortgages in Virginia and New York.

A property James purchased in 2023 in Norfolk, Va., was expected to be at the center of any case to come out of the Eastern District—on the grounds that she misrepresented the home as her primary residence to secure a better rate when applying for a loan, when really she lived, as required by law given her position as attorney general, in New York. This argument was terribly strained. In reality, the home was a primary residence: for James’s niece, whom the attorney general was helping out by co-signing on the mortgage.

Perhaps recognizing the questionable quality of this case, prosecutors have settled on another altogether. The indictment they’ve secured involves a Norfolk property, yes, but one purchased in 2020 rather than 2023. The Justice Department alleges that James described this property as a “second home” rather than the investment property it really was—and that by doing so, she managed to avoid an 0.815 percent higher rate and emerge with “ill-gotten gains” of $18,933 over the life of the loan.

Meet the New Case (Worse than the Old Case?)

Prosecutors are still charging James with bank fraud and false statements to a financial institution, both of which have a statute of limitations of 10 years. To win a conviction, they’ll have to prove that James knowingly made a false statement that was intended to deceive as well as either intended, or tending, to influence the decision of a bank.

The indictment asserts that James financed her purchase of a three-bedroom, one-bathroom property in Norfolk with a loan involving a “Second Home Rider”—a document attached to second-home mortgages that restricts the borrower’s ability to rent the property out. “Despite these representations,” prosecutors say, the property “was not occupied or used by James as a secondary residence and was instead used as a rental investment property.” They note that she filled out Schedule E tax forms indicating she received rental income from the property, and reported zero “personal use” days.

Ahead of the indictment, ABC reported that prosecutors were considering a case exactly like this—but that senior Justice Department leadership wasn’t confident they’d be able to prove the charges beyond a reasonable doubt. The Fannie Mae guidelines on the issue, they worried, were too squishy. And squishy they are: They yield, at least as applied to the Letitia James case, under the gentlest of scrutiny.

Sam Antar, the convicted felon and former certified public accountant who carried out a massive securities scam in the 1980s and has now transformed himself into a muckracking “fraud expert,” surfaced many of the documents now at the center of the James investigation. The trove of information appears to include the mortgage papers at issue in the indictment, including the James-signed second-home rider, whose language matches the Fannie Mae standard.

The rider bars James from entering into “a timesharing or any other shared ownership arrangement or agreement that requires her either to rent the property or give any other person any control over the occupancy or use of the property”—just as the indictment explains it does. But prosecutors don’t even bother to allege she ever entered into such an arrangement. All they allege is that she rented out the property, and that she didn’t personally use it.

That behavior, the rider doesn’t prohibit. On the contrary, it explicitly allows short-term renting during the first year according to certain conditions. One of those conditions does concern occupancy: The home must be “available primarily as a residence for [her] personal use”—but only available. James need not actually have used it. After the first year, renting is even fairer game. Regulators deliberately rewrote the standard rider in 2019 to make renting easier for second-home owners.

Exactly how James used, or didn’t use, the property remains to be seen. The evidence so far appears almost laughably flimsy: The Schedule E forms the indictment references aren’t publicly available, but James provided Antar’s trawled up financial disclosures to the state of New York, and she only notes having received rental income from the Norfolk property in one year, 2020. The amount? $1,000 to $5,000. The indictment’s otherwise odd wording around the “thousand(s) of dollars in rents received” that James recorded on her taxes suggests the amount indicated therein is similar or the same—and consistent with a short-term rental.

If At First You Don’t Succeed

Even proving that James made a false statement to a bank seems like a tall task, given it’s unclear she violated the guidelines for second homes. Proving that she intended to deceive the bank—that she had a firm belief those squishy rules forbade her behavior, and so concealed her intentions from her lender—is a more difficult endeavor still.

That doesn’t matter to President Trump’s indefatigable team of loyal lawyers. The case against James for which the Justice Department received a criminal referral didn’t appear strong enough, so Weaponization Working Group Director and Special Attorney for Mortgage Fraud Ed Martin seems to have gone searching for a stronger one. This one ended up too weak for career prosecutors to feel comfortable with it either, so Lindsey Halligan went ahead and took it to a grand jury on her own.

If she fails in court, perhaps there’s a tiny box on an inconsequential form somewhere else that Letitia James forgot to tick. Or maybe now it’s Adam Schiff’s turn instead. Halligan said in her statement accompanying the indictment that the charges represent “tremendous breaches of the public’s trust.” That’s true—just not in the way she meant it.

Molly Roberts, right, is a senior editor at Lawfare. She was previously a member of the editorial board at The Washington Post, where she covered technology, legal affairs and more, as well as wrote columns about everything from cryptocurrency grift and graft to panda diplomacy at the National Zoo.

Legal AF via YouTube, Trump DOJ SHOCKED by SURPRISE STAR WITNESS in Comey CASE, Shanlon Wu, Oct. 10, 2025. Former federal prosecutor Shan Wu analyzes the impact of the surprise witness!

New star witness in the James Comey case – it’s not who you think it is – it’s not an FBI informant or some close friend of Comey who will tell all about what he did.

It’s someone we all thought had gone quietly into the night – but they are uniquely situated and a veteran of years of DOJ service.  

Emptywheel, Analysis: The Nativists Are Getting Restless: How the Rhythm of the Comey Prosecution May Backfire, Emptywheel (Marcy Wheeler, right), Oct. 10, 2025. Donald Trump indicted Jim Comey (and Tish James, and probably John Bolton next) not just because he is wracked by a compulsion to humiliate the people who have the temerity to suggest the justice system should apply to him, too.

His fascist project also requires him to completely replace rule of law with corruption, as part of a tool to enforce loyalty.

But as he betrayed in the Truth Social post to Pam Bondi that he accidentally posted publicly, he also did so because his rubes are growing impatient.

I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done.

Donald Trump has sold his rubes on a promise of “justice:” that those he has demonized will be branded criminals not just in Trump’s propaganda, but by the legal system as well. The nativists were getting restless that he had yet to deliver and so Trump was under pressure and that’s part of why he pressured Bondi in turn.

It’s not just Trump’s pathologies that demanded these indictments; it’s also the impatience of a very dangerous mob.

With the impatience of Trump’s mob in mind, I want to look at what the Comey arraignment suggests the rhythm of this particular prosecution will go.

EDVA’s rocket docket

EDVA (DOJ’s Eastern District of Virginia) has what’s called a “rocket docket,” an expectation that cases go to trial as quickly as possible and that the trial be as short as possible. On its face, a rocket docket could disrupt Trump’s need to feed his rubes, because it would hasten the moment when the whole thing is exposed as a fraud.

But it also poses a problem because the professionals who will take over this prosecution from Lindsey Halligan — Raleigh AUSAs Tyler Lemons (who took the lead at the arraignment) and Gabriel Diaz — only filed their notices of appearance on October 7, the day before arraignment, and when Patrick Fitzgerald reached out to them, they were completely unprepared to describe even the most basic aspects of the charges against Comey.

Unsurprisingly, the first thing Judge Michael Nachmanoff asked — after Fitzgerald entered a plea of not guilty for Comey — was to ask what date speedy trial would require a trial, which both Fitzgerald and Nachmanoff agreed would work out to be December 17.

When Nachmanoff, right, asked if the case could go to trial by then, Fitzgerald skipped a step, immediately describing that he had sent a letter to prosecutors laying out his theory of defense and a two-phased set of motions he planned to file. He described the first — a Selective and Vindictive prosecution challenge and a challenge to Lindsey the Insurance Lawyer’s appointment — to be submitted on October 20.

As Fitzgerald described, “our view is that this prosecution was brought at the direction of President Trump to silence a constant critic of him and, “we think [Halligan’s appointment] is an unlawful appointment.”

He was less sure about what he would file ten days later, on October 30, but suggested a Bronston literal truth defense motion (the basis for which Anthony Trenga threw out one charge against Igor Danchenko in this same district), a grand jury abuse motion, and an outrageous government conduct motion.

Selling a Lemons CIPA dodge

Lemons used Fitzgerald’s explanation that he would like to exclude 31 days of time from Speedy Trial to insinuate Fitzgerald had suggested Comey needed time to prepare for trial, only to then confess he was not prepared to prosecute the case. “Part of it is obviously honoring the defense’s request for the later trial date and understanding and wanting them to be — have the time adequate to prepare for trial, but also in — it’s no discredit to Mr. Fitzgerald. He’s not — and we’re just getting our hands around the discovery as well.” But he also pointed to “a large amount of discovery which also includes classified information” for the request for more time.

Let me interrupt and note that the most recent ABC piece disclosing concerns the EDVA prosecutors had about the case included the amount of information the government would have to share with Comey.

Prosecutors further expressed concerns about the department’s ability to take the case to trial quickly due to problems identifying all the relevant materials that would need to be handed over to Comey’s lawyers, sources said.

As described, this is not about classified information (though I don’t doubt there’s a fair amount of materials on the SVR files believed to be at the heart of Dan Richman’s involvement). So it seems likely that Lemons is leaning on classified information as a way to stall.

Nevertheless, my sense is this is when things began to get a bit tense in the hearing, not least because it made it important for Fitzgerald to put on the record how unprepared the prosecution team was, but also because it raised the hackles of an EDVA judge about an interloper coming in and refusing to comply with rocket docket considerations.

Fitzgerald used it as an invitation to repeat that prosecutors had not yet told him who the people described in the indictment were (a complaint he made in different form at least three times).

But — as a guy who has presided over some of the most difficult CIPA processes in history — he also scolded prosecutors for putting the cart before the horse, charging before making sure spooks would be willing to declassify intelligence to make a criminal case (not coincidentally, something John Durham did too).

We would have thought in the normal course when the government brings a case, they address the classified information issues ahead of time, coordinate within the national security section, and have a plan. And, frankly, we feel like in this case, the cart may have been put before the horse, and my client would not like to wait around unnecessarily while they go through things we think that should have been done before.

For his part, Nachmanoff used the CIPA excuse as an opportunity to order prosecutors to get Fitzgerald clearance as quickly as possible and to conduct the fastest CIPA process in history. “Either it’s not relevant to the case or it can be declassified or we will go through the fastest CIPA process you have ever seen in your lives.”

Donald Trump’s clearance tantrums

There are two surprises that may arise out of this focus on CIPA, even ignoring Nachmanoff’s impatience with it.

Nachmanoff only described getting Fitzgerald clearance (he noted that Jessica Carmichael, the only attorney of the five present who was currently practicing in EDVA, “has had a number of national security cases in this district in the last few months”). He did not mention Comey getting clearance.

That said, it is customary in CIPA cases to give a defendant clearance if he had clearance to access the materials at issue in a case during the period of the alleged crime — that’s the standard adopted, for example, by Aileen Cannon in the stolen documents case.

If Comey wanted access to this material — and there’s good reason to argue he should — then it might create a conflict between prosecutors (including Lindsey the Insurance Lawyer) and Trump, because one of the areas where a purportedly unreviewable Presidential authority has come under challenge is in legal cases, where the government has tried to moot a legal case by denying someone clearance.

That is, this trial might force Trump to agree to give Comey clearance, something he has stripped from all his adversaries.

But Comey might have reason not to pursue it: because of the even more abusive case Jack Eckenrode is attempting to build in WDVA.

Jack Eckenrode, WDVA, and John Durham’s discovery woes

Last week, one of the FBI agents purged by Kash Patel, Michael Feinberg, described that one of two FBI agents on this case was, “John Durham’s factotum and enforcer,” which via this link he confirmed to mean Jack Eckenrode.

The significance of Eckenrode’s role in this case has received far too little attention. As late as Scooter Libby’s indictment, Eckenrode was a key investigator on Fitzgerald’s CIA Leak case team. But then, as multiple people got leaked information about Karl Rove being imminently indicted, he wasn’t anymore. He and Fitzgerald (and Comey, as the link above notes) go way back, but there’s also a decent chance that Fitzgerald has reasons to know that Eckenrode leaked details of that earlier investigation to pressure him to expand the charges.

And, as Feinberg noted, Eckenrode was Durham’s right hand man, which makes Durham’s testimony (also reported by ABC) pretty awkward.

John Durham, left, the former special counsel who spent nearly four years examining the origins of the FBI investigation into President Donald Trump’s 2016 presidential campaign and its alleged ties to Russia, told federal prosecutors investigating James Comey that he was unable to uncover evidence that would support false statements or obstruction charges against the former FBI director, sources familiar with the matter told ABC News.

Federal prosecutors in Virginia met remotely with Durham in August to understand the findings of his investigation, according to sources familiar with the meeting, and his conclusions raise the prospect that Durham — who was once elevated by Trump and other Republicans believing he would prosecute high-level officials involved with the investigation of the president’s 2016 campaign — could now become a key figure aiding Comey’s defense.

But Eckenrode is also, per the NYT, the lead investigator in an investigation in WDVA premised on what seems to be a theory that FBI agents hid documents in a burn bag to protect people like Comey.

And that suggests a certain logic to the charges as originally packaged (which Lindsey the Insurance Lawyer fucked up and caused to be released). Lindsey the Insurance Lawyer, coached by Eckenrode, first tried to get the grand jury to approve three charges:

• One false statement charge claiming Comey lied when he couldn’t remember what Durham and Eckenrode, with the collusion of Kash Patel and John Ratcliffe, falsely packaged up into a “Clinton Plan” to frame Donald Trump (this is the one the grand jury rejected)

• Another false statement charge claiming Comey lied when he answered (he didn’t really) that he had not authorized anyone to speak to the press anonymously for him, which at some point meant Dan Richman sharing information about SVR documents suggesting that Loretta Lynch was helping Hillary dodge the email investigation

• An obstruction charge arising out of those lies (and now, the single charged lie)

That is, the original theory of the case (and unless the new prosecutors pull a wild headfake to try to salvage the case, still the theory) was directly relevant to the WDVA case. The idea being, you “prove” in EDVA that Jim Comey was lying in 2020 about his knowledge of multiple SVR documents, which you then use to build a case in WDVA that the FBI was conspiring to protect an effort in 2016 to focus on Trump to the exclusion of Hillary.

This is a direct replay of the strategy that Durham (who debunked the current charges) adopted (working with Eckenrode) in 2021, when he attempted to hang conspiracies around two thin false statement cases against Michael Sussmann, right, and Igor Danchenko. You use the false statement to prove a motive for the conspiracy.

You also use one case — as Durham did with privilege challenges in the Sussmann case to obtain records that might have been pertinent to the Igor Danchenko case if they had said what his fervant fever dreams imagined they might — to attempt to obtain evidence for the larger case.

What’s worth knowing, though, is how classification stymied Durham’s case but also — thus far — protected his collusion with Russian spies.

First, in 2020 (literally leading up to the Jim Comey testimony for which he has been charged), Ratcliffe and Kash “declassified” a bunch of documents in a misleading way to substantiate their “Clinton Plan” fabrication, pretty much reversing the meaning of the documents. That then formed the backbone of the Durham investigation.

But Durham only shared still-classified SVR documents with a few subjects of the investigation, like Julianne Smith. He showed targets, like Peter Strzok, the misleadingly classified documents (indeed, that’s what the question to Comey they wanted to charge would have been based on). There was a CIPA process with Sussmann, but I’m convinced they didn’t give him adequate substitutions, because otherwise he would have argued that they were framing him with fabricated documents.

The important detail is that Durham tried to coerce testimony from targets, undoubtedly including Comey, that would have required granting them clearance for such testimony. Witnesses could and some did avoid testifying by refusing to accept clearance — the same thing that the US Attorney in Philadelphia is using with a credulous Marc Caputo to excuse his inability to charge John Brennan.

Of course, to the extent that prosecutors who know none of this background have been dragged into this at the last minute, they may be forced to provide Fitzgerald, at least, with the proof that Eckenrode is still chasing decade old Russian disinformation. They’re just getting their hands around the discovery as well, Lemons explained.

They may in fact hand Fitzgerald evidence that Eckenrode committed the crime he wants to frame Jim Comey of doing.

Lindsey Halligan won’t say who she represents

There were two other details of from the arraignment that didn’t get enough attention, in my opinion.

First, here’s how the introductions went down. Lemons, the AUSA taking the lead, spoke first, greeting Judge Nachmanoff and describing his client in the standard manner. “Good morning, Your Honor. Tyler Lemons for the United States government.”

Lindsey, left, the Insurance Lawyer, went next. Not only did she not greet the judge, but … she didn’t tell us who she represents. “Lindsey Halligan,” was all she said.

After Gabriel Diaz introduced himself in the normal fashion (greeting, then describing that he represents the US), Fitzgerald gave the answer that made all the press reports (probably by design): “Good morning, Your Honor. Pat Fitzgerald, and it’s the honor of my life to represent Mr. Comey in this matter.”

Carmichael, the only one currently practicing in EDVA, also gave the standard answer. “Good morning, Your Honor. Jessica Carmichael for Mr. Comey.”

Given that the only times Lindsey the Insurance lawyer has represented anyone in federal court before, she introduced herself as representing Donald Trump, perhaps it was just safer for Lindsey the Insurance Lawyer to say as little as possible.

More interesting, however, is that Nachmanoff was not playing dumb to the problems with Lindsey the Insurance Lawyer’s presence. After Fitzgerald described his plan to challenge Lindsey the Insurance Lawyer’s appointment, Nachmanoff described — having already checked — what the procedure would be. “[A]ny motion to disqualify Ms. Halligan will be heard by an out-of-district judge,” Nachmanoff explained. “That is the process that has been followed in New Jersey and Nevada, and the Court will follow that process here, which means that a request will be made to Chief Judge Diaz of the Fourth Circuit to appoint an out-of-circuit judge only to address that issue.”

He came prepared for this issue.

As Nachmanoff moved onto a discovery order, Fitzgerald pointed to a piece of discovery he wants right away. “[W]e would like to see the appointment papers forthwith. We don’t want to be shooting at the wrong target” on the disqualification motion. Fitzgerald, who has had all manner of DOJ appointments in his day (once, on Jim Comey’s orders) noted “that most appointment papers for United States attorneys are a page or two, we would ask if we could have that forthwith” so that they could start drafting their motion.

In multiple cases when the Trump Administration tries something funny (as with the Illinois invasion, in which DOD fucked up the authorizing paperwork at least three times), they often don’t have their paperwork in order.

Which is to say, even before the reports out today that Lindsey didn’t consult with ODAG on public integrity concerns about indicting Tish James, DOJ may not have their ducks in a row.

Even as it is, Trump’s indictments of Comey and James have only worked within the narrow bubble of his frothers. In the wider world, they have focused increasing attention on his corruption. But by putting two prosecutors with absolutely no understanding of this background, to say nothing of the real ethical hazards involved in this case, they made it much easier for Fitzgerald to flip the table, to appear as if he is the one doing the prosecution, not them.

Oct. 9

Jim Acosta Show, Prosecutors Just Realized Something Terrifying About Comey’s Case, Oct. 9, 2025. Ex-DOJ pardon attorney Liz Oyer says the government’s prosecution of former FBI director James Comey is already in serious trouble. The biggest threat? It has nothing to do with the evidence against Comey—and everything to do with a decision Trump made before charges were even filed. 

Lawfare, Three Thoughts on the Comey Arraignment, Benjamin Wittes, right,  Oct. 9-10, 2025. I’ve never seen an arraignment hearing quite like this one.

Today, I read the transcript of James Comey’s arraignment—even as the world moved on to the next abuse.

I was not present for yesterday’s opening hearing in the Comey case, having been out of town. And while I was familiar with the press coverage of the arraignment, including the excellent coverage by Lawfare’s Anna Bower and Roger Parloff, I was keen to read the raw transcript itself to see what I could glean from the specific words spoken in court about the direction of the case.

Today I got even further behind in my efforts to keep up with the Justice Department’s ongoing abuse of the criminal process and targeting of its political foes.

Barely had I finished reading the transcript than this afternoon brought an indictment of New York Attorney General Letitia James—a subject to which I will no doubt return after I have read the relevant documents.

In the meantime, I have three observations about yesterday’s transcript, before The Situation shifts from Comey to James—and thence to whomever the next indictee might prove to be.

The first is that there is a notable gap between prosecution and defense lawyers who showed up to yesterday’s hearing in what we might call pride of service. On the prosecution side, the U.S. Attorney’s Office for the Eastern District of Virginia could not find a single lawyer who had worked for the office prior to late September to stand up in court and say, “My name is X and I represent the United States.”

Not one.

The acting U.S. attorney, of course, had been fired because he wouldn’t bring this case. And no career official from the office was at the prosecution table either. Instead, there were two assistant United States attorneys from North Carolina, whose familiarity with the case was so limited that they stressed they were only just starting to get their hands around it and its discovery.

On the other side, by contrast, Comey’s lead defense counsel introduced himself as follows: “Your Honor. Pat Fitzgerald, and it’s the honor of my life to represent Mr. Comey in this matter.”

This is a bit of an inversion of the normal understanding of the roles of criminal lawyers. Federal prosecutors typically feel a certain honor and pride in representing the United States in court—believing that their cases represent attempts to do justice. Defense counsel, by contrast, generally think of themselves as representing a check on the justice system’s coercive power in general. But they often don’t take particular pride in their specific individual representations as embodying justice—much less that representing a particular accused miscreant is the honor of their lives. There are exceptions, of course, but I’m not sure I’ve ever seen a case in which the prosecution was so evidently ashamed of its case and the defense so visibly proud to represent someone accused of a crime.

Fitzgerald is, of course, a smart lawyer, and he was—I assume—making this point intentionally. But the point is also undoubtedly sincere. And it works rhetorically because it is so intuitively right. Fitzgerald is a famed federal prosecutor—one who has prosecuted mobsters, politicians, and White House officials on behalf of the United States—saying that the singular honor of his entire career is representing a defendant against prosecution by the United States, even as the government is having trouble finding lawyers to show up in court on its behalf.

The second point is a related one, and it concerns preparation. There is something embarrassing about the government indicting a case and then showing up in court completely unprepared to litigate it. Yet in a brief hearing, the government did not merely put forward new lawyers from a different state who had clearly been assigned to the matter only a day or two earlier, these lawyers declared they had not yet discerned the scope of their discovery obligations, anticipated that there might be issues with respect to classified material but did not yet know the full scope of those issues, and asked for time to sort things out that are normally sorted out before a case is ever brought.

“We’re just getting our hands around the discovery as well,” prosecutor Tyler Lemons said, as though the prosecution hadn’t had five years to figure out what documents it might need to produce if it brought this case.

The defense too, acknowledged that it was also unprepared—but for a very different reason.

Fitzgerald stated he still lacked the most basic information about what the indictment alleges Comey is supposed to have done. The people about whom Comey is alleged to have lied to Congress are still unnamed, he noted. “We haven’t received a single piece of paper of discovery to date. We still haven’t been told who PERSON 3 and PERSON 1 are. We don’t know the nature of the charges . . . “

Despite his professed unpreparedness, Fitzgerald was able to sketch out a speedy briefing schedule, in which the defense will file its motions to dismiss for selective and vindictive prosecution and challenging the legality of the appointment of Lindsey Halligan in less than two weeks and then, while the government is responding to those, prepare a second tranche of motions to file in November: “We’re a little less certain of precisely what motions [these] would be, but there might be a Bronston literal truth defense motion. There may be a grand jury abuse motion, outrageous government conduct motion, but those motions would be addressed to the indictment,” he said.

It is fairly normal to see cases in which at arraignment the defense has not gotten its act together yet while the prosecution has its ducks neatly lined up. Indictments, after all, sometimes take defendants by surprise. Defendants don’t always have their legal teams set up yet.

The opposite situation—-one in which the prosecution can’t even give a coherent account of its discovery process or a sense of the role classified material might play in the case, while the defense can lay out a roadmap to trial—I have never seen before.

My third observation is that the reason for both of the first two points is the same and unsubtle: Because the government is behaving shamefully and proceeding with a rushed criminal case based on compound untruths, it neither has put itself in a position to behave responsibly—by having discovery ready and the like—nor does it have access to attorneys of the sort who know the case they have brought when it comes time to move it forward in court.

But expecting that sort of thing is apparently passé. Today the Eastern District of Virginia is already on to Letitia James for a crime she also didn’t commit. 

Jim Acosta Show, Prosecutors Just Realized Something Terrifying About Comey’s Case, Oct. 9, 2025. Ex-DOJ pardon attorney Liz Oyer says the government’s prosecution of former FBI director James Comey is already in serious trouble. The biggest threat? It has nothing to do with the evidence against Comey—and everything to do with a decision Trump made before charges were even filed.

Lawfare, Three Thoughts on the Comey Arraignment, Benjamin Wittes, right,  Oct. 9-10, 2025. I’ve never seen an arraignment hearing quite like this one.

Today, I read the transcript of James Comey’s arraignment—even as the world moved on to the next abuse.

I was not present for yesterday’s opening hearing in the Comey case, having been out of town. And while I was familiar with the press coverage of the arraignment, including the excellent coverage by Lawfare’s Anna Bower and Roger Parloff, I was keen to read the raw transcript itself to see what I could glean from the specific words spoken in court about the direction of the case.

Today I got even further behind in my efforts to keep up with the Justice Department’s ongoing abuse of the criminal process and targeting of its political foes.

Barely had I finished reading the transcript than this afternoon brought an indictment of New York Attorney General Letitia James—a subject to which I will no doubt return after I have read the relevant documents.

In the meantime, I have three observations about yesterday’s transcript, before The Situation shifts from Comey to James—and thence to whomever the next indictee might prove to be.

The first is that there is a notable gap between prosecution and defense lawyers who showed up to yesterday’s hearing in what we might call pride of service. On the prosecution side, the U.S. Attorney’s Office for the Eastern District of Virginia could not find a single lawyer who had worked for the office prior to late September to stand up in court and say, “My name is X and I represent the United States.”

Not one.

The acting U.S. attorney, of course, had been fired because he wouldn’t bring this case. And no career official from the office was at the prosecution table either. Instead, there were two assistant United States attorneys from North Carolina, whose familiarity with the case was so limited that they stressed they were only just starting to get their hands around it and its discovery.

On the other side, by contrast, Comey’s lead defense counsel introduced himself as follows: “Your Honor. Pat Fitzgerald, and it’s the honor of my life to represent Mr. Comey in this matter.”

This is a bit of an inversion of the normal understanding of the roles of criminal lawyers. Federal prosecutors typically feel a certain honor and pride in representing the United States in court—believing that their cases represent attempts to do justice. Defense counsel, by contrast, generally think of themselves as representing a check on the justice system’s coercive power in general. But they often don’t take particular pride in their specific individual representations as embodying justice—much less that representing a particular accused miscreant is the honor of their lives. There are exceptions, of course, but I’m not sure I’ve ever seen a case in which the prosecution was so evidently ashamed of its case and the defense so visibly proud to represent someone accused of a crime.

Fitzgerald is, of course, a smart lawyer, and he was—I assume—making this point intentionally. But the point is also undoubtedly sincere. And it works rhetorically because it is so intuitively right. Fitzgerald is a famed federal prosecutor—one who has prosecuted mobsters, politicians, and White House officials on behalf of the United States—saying that the singular honor of his entire career is representing a defendant against prosecution by the United States, even as the government is having trouble finding lawyers to show up in court on its behalf.

The second point is a related one, and it concerns preparation. There is something embarrassing about the government indicting a case and then showing up in court completely unprepared to litigate it. Yet in a brief hearing, the government did not merely put forward new lawyers from a different state who had clearly been assigned to the matter only a day or two earlier, these lawyers declared they had not yet discerned the scope of their discovery obligations, anticipated that there might be issues with respect to classified material but did not yet know the full scope of those issues, and asked for time to sort things out that are normally sorted out before a case is ever brought.

“We’re just getting our hands around the discovery as well,” prosecutor Tyler Lemons said, as though the prosecution hadn’t had five years to figure out what documents it might need to produce if it brought this case.

The defense too, acknowledged that it was also unprepared—but for a very different reason.

Fitzgerald stated he still lacked the most basic information about what the indictment alleges Comey is supposed to have done. The people about whom Comey is alleged to have lied to Congress are still unnamed, he noted. “We haven’t received a single piece of paper of discovery to date. We still haven’t been told who PERSON 3 and PERSON 1 are. We don’t know the nature of the charges . . . “

Despite his professed unpreparedness, Fitzgerald was able to sketch out a speedy briefing schedule, in which the defense will file its motions to dismiss for selective and vindictive prosecution and challenging the legality of the appointment of Lindsey Halligan in less than two weeks and then, while the government is responding to those, prepare a second tranche of motions to file in November: “We’re a little less certain of precisely what motions [these] would be, but there might be a Bronston literal truth defense motion. There may be a grand jury abuse motion, outrageous government conduct motion, but those motions would be addressed to the indictment,” he said.

It is fairly normal to see cases in which at arraignment the defense has not gotten its act together yet while the prosecution has its ducks neatly lined up. Indictments, after all, sometimes take defendants by surprise. Defendants don’t always have their legal teams set up yet.

The opposite situation—-one in which the prosecution can’t even give a coherent account of its discovery process or a sense of the role classified material might play in the case, while the defense can lay out a roadmap to trial—I have never seen before.

My third observation is that the reason for both of the first two points is the same and unsubtle: Because the government is behaving shamefully and proceeding with a rushed criminal case based on compound untruths, it neither has put itself in a position to behave responsibly—by having discovery ready and the like—nor does it have access to attorneys of the sort who know the case they have brought when it comes time to move it forward in court.

But expecting that sort of thing is apparently passé. Today the Eastern District of Virginia is already on to Letitia James for a crime she also didn’t commit.

Oct. 8

New York Times, Updates: Comey Will Seek to Dismiss Case as Vindictive Prosecution, Glenn Thrush, Oct. 8, 2025. 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 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.

Charlie Savage, Legal policy reporter: 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. 

Talking  Points Memo, Key Witness Undercuts Trump DOJ’s Witch Hunt Against Jim Comey, David Kurtz, Oct. 8, 2025.

Prior reporting had already suggested that a key witness in the bogus prosecution of former FBI Director Jim Comey was not helpful to prosecutors, but ABC News has a new story out this morning that expands on the obstacle the witness presents to interim U.S. Attorney Lindsey Halligan’s case.

The witness is longtime Comey friend Daniel Richman, a law professor at Columbia University.

ABC News has consistently had good sources seemingly from within the U.S. Attorney’s Office for the Eastern District of Virginia. Its sources for the latest story are familiar with the contents of the internal memo in which career prosecutors laid out the reasons for not seeking an indictment of Comey. That decision led Trump to force out then-acting U.S. Attorney Erik Siebert (Trump’s own nominee for the permanent post) and replace him with Halligan, who promptly indicted the case personally.

As I read the ABC News story, the quoted phrases “problematic” and “likely insurmountable problems” are directly from the memo declining to prosecute:

Federal prosecutors investigating former FBI Director James Comey for allegedly making false statements to Congress determined that a central witness in their probe would prove “problematic” and likely prevent them from establishing their case to a jury, sources familiar with their findings told ABC News. …

According to prosecutors who investigated the circumstances surrounding Comey’s 2020 testimony for two months, using Richman’s testimony to prove that Comey knowingly provided false statements to Congress would result in “likely insurmountable problems” for the prosecution.

Investigators detailed those conclusions in a lengthy memo last month recommending that the office not move forward in charging Comey, according to sources familiar with the memo’s contents.

To put it bluntly, a key witness is “hostile,” in the words of Halligan’s deputy, to the prosecution’s case. Some cases can survive that kind of weakness, but prosecutors in Virginia and earlier in DC, have failed to find additional evidence that Comey lied to Congress as alleged. So there’s precious little evidence for prosecutors to use to overcome the weakness presented by Richman:

Investigators who reviewed material from Comey’s emails, including his correspondence with Richman, could not identify an instance when Comey approved leaking material to a reporter anonymously, sources told ABC News.

The Real Michael Cohen and Dean Bludell Podcast, Comey Perp walk / Indictment, Michael Cohen, Dean Blundell and Lev Parnas, Oct. 8, 2025. A recording from Michael Cohen and Dean Blundell’s live video.

Talking Feds with Harry Litman, Trump Gets RUDE AWAKENING in BOGUS COMEY CASE, Oct. 8, 2025. Harry breaks down the arraignment of James Comey that took place this morning in Virginia.

Daily Beast, Trump’s Comey Witch Hunt Hit by Bombshell Prosecution Leak, Ewan Palmer, Oct. 8, 2025. MAJOR PROBLEM. The former FBI director has denied the allegations brought forward by Trump-loyalist prosecutors.

Federal prosecutors investigating former FBI Director James Comey found that a key witness in their inquiry would be “problematic” and potentially undermine the entire case, according to a damaging leak.

Those investigating President Donald Trump’s nemesis found that testimony from Daniel Richman—a law professor whom prosecutors claim Comey authorized to leak information to the media—would contradict the claims central to the already shaky case, sources said. 

CNN, James Comey’s long, strange trip into the jaws of Donald Trump’s campaign of retribution, Marshall Cohen and Jeremy Herb, Oct. 8, 2025. Former FBIDirector James Comey wasn’t always atop President Donald Trump’s enemies list.

“You’ve had one heck of a year,” Trump, then the president-elect, said to Comey in January 2017, the first time they met face-to-face privately at Trump Tower in New York. Trump told Comey he had a “great reputation” and handled the FBI’s investigation into Hillary Clinton’s use of a private email server “honorably,” according to Comey’s re-telling of their meeting in his 2018 memoir.

That might have been the high point of their relationship.

Moments later, the FBI director told Trump for the first time about the infamous “Steele dossier,” which alleged that Trump and his campaign colluded with the Russians to win the 2016 election. It was a conversation that would ultimately send Comey spiraling down the path to becoming one of Trump’s chief villains.

Now, Comey is caught in the middle of Trump’s second-term retribution campaign, after he was charged last month with a two-count criminal indictment for allegedly lying to Congress in 2020 about leaks, which CNN has reported appears to be related to the FBI’s Clinton email investigation.

Comey, who has said he is “innocent” of the charges, pleaded not guilty at his arraignment in Virginia Wednesday morning. A judge set his trial date for January 5, 2026.

Along the way, unlike his recent FBI predecessors, Comey forged an unprecedented decade-long path to becoming a major political actor, whose every action is weaponized by partisans from both sides for their own gain. He went from a Democratic scapegoat for the party’s 2016 election loss, to a catalyst for the appointment of special counsel Robert Mueller, to a prominent anti-Trump resistance figure, and now, a criminal defendant.

“Trump is the ultimate pugilist and Comey is his punching bag, because Comey pricks away at Trump’s ego and paranoia,” said Douglas Brinkley, CNN Presidential Historian and a history professor at Rice University. “History will look at them both with jaded eyes, over the fact that these two grown-ups put their country through so many nauseating news cycles of schoolyard one-upmanship.”

Here are the key moments that define the long and winding Trump-Comey grudge:Clinton bombshells roil 2016

Many Americans had probably never heard of Jim Comey before July 5, 2016.

That’s when – in the heat of a presidential campaign, with the party conventions just weeks away – Comey held an unprecedented 15-minute press conference explaining the results of the FBI’s yearlong investigation into Hillary Clinton’s email server.

Comey blasted Clinton for being “extremely careless” with classified emails and said she “should have known” not to use a private server. But evidence of criminal intent was so lacking, he concluded, that “no reasonable prosecutor” would indict the Democratic nominee.

This was unheard of. Investigators rarely announce when an investigation doesn’t lead to charges. And it’s even less common for the FBI chief to publicly criticize a major political figure. Comey said he was providing this “unusual transparency” because “the American people deserve those details, in a case of intense public interest.”

Both sides were instantly enraged. Trump lashed out, saying it proved “the system is rigged.” And Clinton was livid that Comey veered from FBI norms of saying nothing publicly when an investigation ends without any charges.

For the next few months, Trump and Clinton duked it out on the campaign trail. Then, in late October, Comey came roaring back, telling Congress in a letter that the FBI was re-opening the Clinton probe after discovering new emails that belonged to her.

CNN reported at the time that Comey’s move, which was widely described as a potentially game-changing “October surprise,” reinvigorated Trump’s flailing campaign. (Some nonpartisan polling experts like Nate Silver later concluded that it probably cost Clinton the election.)

After the letter, Trump’s past attacks predictably turned into praise. (He said Comey had “a lot of guts.”) But that, too, was short-lived: One week later – a mere 48 hours before Election Day – Comey said the FBI was finished reviewing the new Clinton emails and reaffirmed its view that charges weren’t warranted.

Brian Fallon, the Clinton campaign’s top spokesman, recently told CNN’s Anderson Cooper that he still blames Comey for Trump’s 2016 victory but that he believes the charges against him are a “bone-chilling abuse of power.”

“There’s plenty of us that, to this day, feel that, but for the letter that Jim Comey sent to the Hill inappropriately about her email server, 11 days prior to the election, that the election outcome might have gone differently,” Fallon said. “There are plenty of people on our side of the aisle that are not fans of Jim Comey. And yet, none of that … justifies what has happened.”Trump tells Comey: ‘I need loyalty’

After the 2016 election, Comey was faced with even thornier political problems: The FBI’s investigation into the Trump campaign’s suspicious ties to Russia, and how to handle a related dossier with salacious allegations involving the president-elect.

Two weeks before his swearing in, Trump was briefed at Trump Tower by a wider group of US intelligence leaders about their findings that Russia meddled to help him win the election. Comey asked to speak alone with the president-elect about an even more sensitive matter.

“As I spoke, I felt a strange out-of-body experience, as if I were watching myself speak to the new president about prostitutes in Russia,” Comey recalled in his 2018 book, referring to a salacious and now-discredited allegation in the dossier. “Before I finished, Trump interrupted sharply, with a dismissive tone. He was eager to protest that the allegations weren’t true.”

Just two days after Trump was sworn into office, Comey had a fateful and unsolicited embrace in the White House with the president during a gathering of law enforcement to thank them for their work on the inauguration. The footage would be replayed over and over again whenever Comey was back in the news.

Trump spotted Comey and called out for him. “He’s become more famous than me,” Trump said as Comey walked across the room and awkwardly shook hands with Trump, who leaned in to embrace his FBI director.

Trump’s one-on-one meetings with Comey continued, much to the chagrin of the FBI director, who began documenting them by writing memos of the conversations afterward.

At a January 2017 dinner, Trump told Comey, “I need loyalty. I expect loyalty,” Comey would later recall. The FBI director eventually responded he would provide “honesty” to the president.

The next month, after Trump’s national security adviser Michael Flynn resigned because of the rapidly escalating Russia scandal, Trump asked to speak alone with Comey following a counterterrorism briefing.

Trump said of the FBI’s probe into Flynn: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go,” according to special counsel Mueller’s 2019 report.

In March, with the Russia allegations swirling in the press over the beginning of Trump’s presidency, Comey had yet another investigative bombshell to reveal publicly for the first time, at a House hearing about Russia’s election meddling.

“The FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts,” Comey said on March 20, 2017.

Later that month, the president asked Comey in a phone call to “lift the cloud” of the Russia investigation by saying Trump was not personally under investigation, Comey would recall. Comey responded that he would “see what we could do,” which he later explained was a way of “kind of getting off the phone.”

Instead, the cloud would only grow larger.Firing leads to ‘surreal’ Hill hearing

Several weeks later, Comey was on the other side of the country speaking to agents in the Los Angeles field office on May 9, 2017, when the headline blared across a television screen in his eyesight: “COMEY FIRED.”

Back in Washington, a White House aide had delivered to FBI headquarters a letter from Trump, which stated he was firing Comey based on recommendations from top Justice Department officials over his mishandling of the Clinton email probe.

But one day later, Trump revealed his underlying motivation for the firing. He told Russian officials in the Oval Office that he “faced great pressure because of Russia. That’s taken off.”

The next day, Trump went a step further in an interview with NBC’s Lester Holt, saying he was going to fire Comey regardless of the DOJ recommendation. “When I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should have won.”

Trump also made a veiled threat to Comey on Twitter, writing “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!”

Comey decided to share the memo of his Trump conversation related to the Flynn investigation with his friend and lawyer Dan Richman, who shared its contents with the New York Times.

“Now that I was a private citizen, I could do something,” Comey wrote. One day after stories about the memo were published, then-Deputy Attorney General Rod Rosenstein announced Mueller’s appointment.

Comey was invited to testify before the Senate Intelligence Committee, nearly one month after his firing. The June 8, 2017, hearing was a spectacle on Capitol Hill with anticipation rarely seen for congressional proceedings. The line to get into the hearing stretched around the Hart Senate Office Building. Hordes of reporters and photographers crowded in to witness Comey’s first public comments since his firing. Some bars in Washington, DC, even opened early for Comey watch-parties.

“I walked with the leaders of the committee down the long private hall behind the dais, turned left, and stepped into something surreal. I have seen lots of cameras in my day and heard my share of shutter clicks. Nothing compared to this scene,” Comey wrote in his book about entering the hearing.

During the hearing, Comey recalled his conversations with Trump and the circumstances surrounding his firing. “Lordy, I hope there are tapes,” he said of Trump’s threat. (There were not tapes.)

“We truly did not know what he was going to say or how this hearing was going to go. In the end, 20 million Americans watched it live,” said Rachel Cohen, a spokeswoman for Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee. “As long as I do this, I will probably never live through a crazier day.”DOJ watchdog excoriates Comey

The Mueller probe was in full swing by June 2018, when the Justice Department inspector general released a bombshell 568-page report that dragged the country’s attention back to the Clinton email investigation.

The report was a devastating blow to Comey, highlighting his missteps and blunders that the watchdog said were “extraordinary and insubordinate.”

New York Times, Comey to Appear in Court in Case That Has Roiled Justice Dept., Glenn Thrush, Oct. 8, 2025. The case against James B. Comey, the former F.B.I. director, was deemed too thin by a previous federal prosecutor, who quit under pressure from President Trump.

The proceedings at the federal courthouse in Alexandria, Va., on Wednesday morning will have the superficial trappings of any other arraignment: The accused will stand before a judge, hear the charges against him and sign the paperwork.

But the initial court appearance of James B. Comey, the former F.B.I. director, on charges of lying to Congress five years ago will be a highly unusual event with potentially enormous political and legal implications.

The indictment of Mr. Comey, who ordered the investigation into the Trump campaign’s connections to Russia in 2016, represented the most significant legal action taken against those President Trump has publicly targeted for retribution.

The case was presented to a grand jury on Sept. 25 — over the opposition of prosecutors in the Eastern District of Virginia — by Lindsey Halligan, a White House official hastily installed by Mr. Trump as U.S. attorney after her predecessor found insufficient evidence to indict Mr. Comey.

It came shortly after the president all but commanded Attorney General Pam Bondi, right, to take legal action against Mr. Comey; Senator Adam B. Schiff, a California Democrat; and New York’s attorney general, Letitia James.

“Nothing is being done,” he wrote in a post on his Truth Social platform. “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.”

Mr. Comey faces up to five years in prison if convicted, though many current and former prosecutors believe the case will be difficult to prove — if his lawyers do not succeed in getting the charges quickly dismissed.

“My family and I have known for years that there are costs to standing up to Donald Trump, but we couldn’t imagine ourselves living any other way,” Mr. Comey said in a video released hours after he was charged.

“We will not live on our knees, and you shouldn’t either,” added Mr. Comey, who has assembled a formidable defense team, including Patrick J. Fitzgerald, the former U.S. attorney in Chicago known for prosecuting major terrorism and corruption cases.

The arraignment was originally scheduled for Thursday, but the chief judge of the district court moved it up a day, citing logistical and security concerns.

The visuals of vengeance are of great importance to Mr. Trump, who rose to national prominence as a reality television star who often watched his broadcasts with the sound off to better judge how he looked.

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 Mr. Comey into the courthouse before the 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. Thus far, Mr. Comey has only been issued a summons to appear in court, although arrests are not unheard-of in such cases.

In 2022, Peter Navarro, a longtime Trump adviser, was taken into custody and handcuffed as he boarded an airplane in Washington, an action criticized as overly aggressive by the judge in his case.

Ms. Halligan, who narrowly secured a two-count indictment after a shaky solo appearance before the grand jury, has had a hard time getting anyone in her new office to help her with the case, according to current and former prosecutors in the office.

Two prosecutors who work in the Eastern District of North Carolina, Tyler Lemons and Gabriel Diaz, gave official notice on Tuesday that they had been assigned to the case, according to court records.

The case has cast a corrosive pall over the Eastern District of Virginia, one of the most important federal prosecutor’s offices in the nation.

Erik S. Siebert, the district’s former U.S. attorney, came under pressure from Mr. Trump after telling his superiors in the Justice Department that there was not enough evidence against Mr. Comey or, in a separate potential case, Ms. James. Mr. Siebert quit on Sept. 19, hours after the president called for his ouster.

Since then, Trump Justice Department appointees have fired without cause two top career prosecutors who also objected to the Comey indictment. Many other officials in the Eastern District of Virginia have applied for jobs on the outside or have written memos justifying their actions in case they have to contest personnel actions or sue the department.

The bare-bones, two-page indictment against Mr. Comey was signed only by Ms. Halligan, a former defense lawyer for Mr. Trump who had been serving as a midlevel lawyer in the office of the White House staff secretary.

Mr. Comey was indicted on 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.

Court records indicate that Ms. Halligan also tried to get the grand jury to indict Mr. Comey on a second false statement charge, which was rejected.

Mr. Comey is not the first former head of the F.B.I. to face criminal charges. In 1978, a former acting head of the bureau during Watergate, L. Patrick Gray, was indicted on charges of conspiring to violate the constitutional rights of Americans.

Prosecutors said he authorized agents to break into homes without warrants, in a hunt for fugitive members of Weather Underground, the violent far-left group.

The charges against Mr. Gray were dropped two years later.

The Real Michael Cohen and Dean Bludell Podcast, Comey Perp walk / Indictment, Michael Cohen, Dean Blundell and Lev Parnas, Oct. 8, 2025. A recording from Michael Cohen and Dean Blundell’s live video.

Justice Matters, Commentary: Trump’s Vindictive Prosecution of James Comey Begins, Glenn Kirschner, Oct. 8, 2025. All the “King’s” Men: Trump’s lackeys and their disservice to America.

I was in the courtroom today when former FBI Director James Comey was arraigned on two felony charges: one for allegedly making false statements to Congress and a second for allegedly obstructing a congressional proceeding.

Donald Trump has been threatening for years to prosecute his enemies. This is the first vindictive prosecution that has actually been brought in court.

This video reviews, in detail, everything that happened in court today in the case of United States of American vs. James Comey.

For nightly live Law Talks, please join me on Substack: glennkirschner.substack.com

Daily Beast, Trump’s Comey Witch Hunt Hit by Bombshell Prosecution Leak, Ewan Palmer, Oct. 8, 2025. MAJOR PROBLEM. The former FBI director has denied the allegations brought forward by Trump-loyalist prosecutors.

Federal prosecutors investigating former FBI Director James Comey found that a key witness in their inquiry would be “problematic” and potentially undermine the entire case, according to a damaging leak.

Those investigating President Donald Trump’s nemesis found that testimony from Daniel Richman—a law professor whom prosecutors claim Comey authorized to leak information to the media—would contradict the claims central to the already shaky case, sources said. 

Sept. 27 

New York Times, The Testimony at the Heart of the Comey Indictment, Examined, Charlie Savage, Updated Sept. 27, 2025. The charges against the former F.B.I. director center on an appearance he made before a Senate committee in September 2020. Here’s a closer look.

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 days ago by President Trump to lead the Eastern District of Virginia after her predecessor refused to bring the case.

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 the jury rejected.What are the charges against Mr. Comey?

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.

Sept. 26 

Politico, Donald Trump’s US attorneys, unvetted by the Senate, move full steam ahead, Erica Orden and Hailey Fuchs, Sept. 26, 2025. Some have displayed far more obedience to Trump than full-time U.S. attorneys have ever shown to presidents they served under.

President Donald Trump has just two Senate-confirmed U.S. attorneys in place. That hasn’t stopped him from leaning on unvetted and newly minted prosecutors to harness the power of the Justice Department against his political enemies.

In the Eastern District of Virginia, Lindsey Halligan, a former Trump personal attorney who has never prosecuted a case, on Thursday secured the indictment of former FBI Director James Comey three days after Trump ousted an experienced prosecutor to install Halligan on a temporary basis.

In the Northern District of New York, John Sarcone, also a first-time prosecutor, is investigating New York Attorney General Letitia James, another Trump foe. Sarcone is serving in the U.S. attorney role indefinitely without Senate confirmation because Trump used a procedural maneuver to keep him there even after district judges, empowered to appoint temporary federal prosecutors, declined to name him to the post.

And in New Jersey, another former Trump personal attorney with no previous prosecutorial experience, Alina Habba, is prosecuting a Democratic member of Congress who was attempting to conduct an oversight visit at an immigration detention center. Habba, too, is serving as U.S. attorney indefinitely without Senate confirmation, although the legitimacy of her authority is being challenged.

Around the country, nearly all of Trump’s U.S. attorney nominees have been unable to receive confirmation by the Senate. Some of his nominees are so inexperienced or have a history of so much politicized conduct that they cannot win confirmation even in a Republican-controlled Senate. Other nominees might have enough votes to be confirmed, but Democrats have successfully blocked them.

Without Senate-vetted appointees, most of the country’s 93 U.S. attorney offices are being led by interim leaders — and some of them have displayed far more obedience to Trump, and his desire for retribution, than full-time U.S. attorneys have ever shown to presidents they served under. Historically, U.S. attorneys have tended to guard their offices’ authority to work relatively independently even from Justice Department headquarters and certainly from the White House.

That’s no longer the case in the first eight months of Trump’s second term, said Mimi Rocah, a former federal prosecutor and former Westchester County district attorney. “It’s changing the whole culture of the office,” she said. 

New York Times, Trump Administration Updates: Comey Indicted After Pressure From President, Devlin Barrett, Glenn Thrush and Alan Feuer, Sept. 26, 2025 (print ed.). 

A federal grand jury on Thursday indicted James B. Comey, shown in a file photo above, the former F.B.I. director, a culmination of President Trump’s relentless demand for retribution after the bureau investigated his 2016 presidential campaign over possible ties to Russia.

Mr. Comey was indicted on 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.

The indictment, filed in Alexandria, Va., came over the objection of career prosecutors in the Eastern District of Virginia who found insufficient evidence to support charges but were overruled by Lindsey Halligan, a Trump loyalist handpicked by the president to run the office a few days ago.

It represents the most significant legal step yet by the Trump administration to harry, punish and humiliate a former official the president identified as an enemy, at the expense of procedural safeguards intended to shield the Justice Department from political interference and personal vendettas.

The bare-bones, two-page indictment was signed only by Ms. Halligan, left, a former defense lawyer for Mr. Trump who personally presented the case to the jury, despite her lack of any previous prosecutorial experience. Typically such filings are also endorsed by career prosecutors who have gathered the evidence in the case.

Court records indicate that Ms. Halligan also tried to get the grand jury to indict Mr. Comey on a second false statement charge, and that it was rejected.

For a charging document as consequential as indicting a former F.B.I. director, the filing is not particularly revealing. It asserts that Mr. Comey falsely claimed during the hearing before the Senate Judiciary Committee that he had not authorized someone else at the F.B.I. to be an anonymous source in news reports regarding an investigation into “Person 1,” which appears to be a reference to Hillary Clinton.

“That statement was false,” the indictment charges, because Mr. Comey “had in fact authorized PERSON 3 to serve as an anonymous source in news reports regarding an F.B.I. investigation concerning PERSON 1.”

The document does not identify either Person 1 or Person 3, but at the hearing, Senator Ted Cruz, Republican of Texas, pressed Mr. Comey on whether he had ever authorized his former deputy, Andrew McCabe, to discuss an investigation with a reporter. Mr. Comey stood by his answers at past hearings and denied doing so.

Career prosecutors who looked at the evidence against Mr. Comey thought the case was far too weak to justify an indictment, according to people familiar with the matter who spoke on the condition of anonymity. For one thing, the key exchange was brief. For another, it referred to testimony from three years earlier, and Mr. Comey said he stood by those answers without elaborating.

The vague description of authorizing someone at the F.B.I. to share information with a journalist could also apply to a different episode from that period. Republicans have criticized Mr. Comey over designating a college professor he trusted, Daniel Richman, as a special government employee who then spoke to a reporter for The New York Times.

The wording of the indictment leaves unclear which of those two situations is at issue, though in recent days investigators had re-interviewed Mr. Richman, according to people familiar with the matter.

Mr. Comey faces up to five years in prison if convicted, although many current and former prosecutors believe the case will be difficult to prove.

Shortly after the indictment was made public, Troy A. Edwards, Jr., Mr. Comey’s son-in-law, resigned his post as a prosecutor in the office that brought charges against the former F.B.I. director.

Mr. Edwards, who helped prosecute Jan. 6 rioters, including members of the far-right Oath Keepers, said in an email to his supervisor that he left to “uphold his duty to the Constitution and country.”

In a video statement, Mr. Comey declared his innocence and welcomed an opportunity to vindicate himself in a trial. “We will not live on our knees, and you shouldn’t either.”

Referring to his daughter, Maurene, who was dismissed this summer from her own post at the Justice Department, he added, “Somebody that I love dearly recently said that fear is the tool of a tyrant, and she’s right, but I’m not afraid, and I hope you’re not either.”

Mr. Trump praised the move, posting on Truth Social shortly after the indictment was announced. “JUSTICE IN AMERICA!” he wrote.

Senator Mark Warner, right, Democrat of Virginia, in a statement, warned that the indictment underscored how the president intended to deploy the justice system. “This kind of interference is a dangerous abuse of power,” he said. “Our system depends on prosecutors making decisions based on evidence and the law, not on the personal grudges of a politician determined to settle scores.”

Mr. Trump, who claims his actions are motivated by the weaponization of government against him, has intensified his public pressure campaign on the Justice Department in recent days. He has publicly called upon Pam Bondi, the attorney general, to use her power to go after adversaries he has described as “scum,” including Mr. Comey and Letitia James, the New York attorney general who sued Mr. Trump for inflating the value of his assets.

Ms. Bondi, left, and her top deputy have quietly raised concerned that the case against Mr. Comey was too weak to result in convictions, according to current and former officials. But she appeared to embrace the move on social media post, without mentioning Mr. Comey by name, writing: “No one is above the law.”

The F.B.I. director, Kash Patel, suggested on social media that the indictment would not be the administration’s last against what he referred to as “previous corrupt leadership and their enablers.” He added: “Everyone, especially those in positions of power, will be held to account – no matter their perch.”

Many current and former Justice Department officials said they viewed the filing of criminal charges against Mr. Comey as deeply troubling. The consequences could be far-reaching, they argued, including the resignations of more prosecutors over how the Trump administration has sought to use the agency, and the erosion of public trust in U.S. attorneys.  

Letters from an American, Historical Commentary: Sept. 25, 2025 [Trump's Push for Complete Control of Government], Heather Cox Richardson, right, Sept. 26, 2025. 

Days after Trump demanded that the Department of Justice move “now” to prosecute those he perceives to be his enemies, a federal grand jury has indicted former FBI director James Comey for allegedly lying to Congress and obstructing an investigation. Comey was an early casualty of Trump’s first administration, fired after he refused to kill the FBI investigation of the ties between Trump’s 2016 campaign and Russian operatives.

Over last weekend, Trump exploded at then–acting U.S. attorney for the Eastern District of Virginia Erik Siebert, a career prosecutor, after Siebert concluded there was not enough evidence of a crime to charge Comey for allegedly lying to Congress or New York attorney general Letitia James for alleged mortgage fraud.

On Monday Trump replaced Siebert with White House aide and Trump’s former personal lawyer Lindsey Halligan, right, and yesterday three sources told Ken Dilanian and Carol Leonnig of MSNBC that they expected Halligan to try to get a grand jury to indict Comey before the five-year statute of limitations on lying to Congress runs out next Tuesday.

Tonight the DOJ delivered an indictment against Comey.

“My family and I have known for years that there are costs to standing up to Donald Trump,” Comey said tonight in a video. “But we…will not live on our knees, and you shouldn’t either. Somebody that I love dearly recently said that fear is the tool of a tyrant, and she’s right, but I’m not afraid, and I hope you’re not either. I hope instead you are engaged, you are paying attention, and you will vote like your beloved country depends upon it, which it does. My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system. I’m innocent. So let’s have a trial and keep the faith.”

The DOJ was busy today. It also sued six states—California, Michigan, Minnesota, New York, New Hampshire, and Pennsylvania—toforce them to hand over their voter rolls and information identifying those voters. Matt Cohen of Democracy Docket notes that state officials from both Democratic and Republican governments have questioned why the government wants that information. This lawsuit comes after a nearly identical lawsuit the DOJ filed last week against Maine and Oregon.

Former FBI Director James Comey is sworn in remotely from his home during a Senate Judiciary Committee hearing exploring the FBI’s investigation of the 2016 Trump campaign and Russian election interference in Washington, U.S on , Sept. 30, 2020 (Photo via U.S. Senate Judiciary Committee).

Politico, ‘Let’s have a trial’: Comey proclaims innocence as Trump revels in grand jury indictment he demanded, Kyle Cheney and Josh Gerstein, Sept. 26, 2025 (print ed.).  A grand jury indicted the former FBI director on two felony charges stemming from congressional testimony he gave in September 2020.James Comey is sworn via videoconference.

Federal prosecutors in Virginia have charged former FBI Director James Comey with obstruction and making a false statement to Congress, just days after President Donald Trump publicly implored his Justice Department to quickly seek indictments of his perceived foes and ousted a U.S. attorney who resisted.

A grand jury in Alexandria, Virginia, indicted Comey on Thursday on two felony charges stemming from Comey’s testimony to the Senate Judiciary Committee in September 2020 about the FBI’s investigation into links between Trump’s 2016 presidential campaign and Russia.

The obstruction of Congress charge accuses Comey of making “false statements” at that hearing, but is silent about what they were.

The false statement charge relates to Comey’s denial at the hearing that he authorized anyone at the FBI to speak to the media anonymously about FBI investigations related to Trump or his 2016 rival, Hillary Clinton. Former Deputy FBI Director Andrew McCabe, left, told investigators with DOJ’s inspector general that Comey authorized him to talk to a reporter about an aspect of an investigation the FBI conducted into the Clinton Foundation.

In a video posted online Thursday night, the former FBI chief and onetime deputy attorney general proclaimed his innocence — and hinted at a strategy for challenging the case against him as an act of political vengeance by Trump himself.

“My family and I have known for years that there are costs to standing up to Donald Trump, but we couldn’t imagine ourselves living any other way. We will not live on our knees, and you shouldn’t either,” Comey said. “My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system, and I’m innocent, so, let’s have a trial.”

Comey appeared to allude to the July firing of his daughter, Maurene Comey, who had been a federal prosecutor in Manhattan for nearly a decade. The indictment also prompted the resignation Thursday of Troy Edwards, a senior federal prosecutor in Alexandria who is married to another of James Comey’s daughters, three people familiar with the development said.

Edwards, deputy chief of the office’s national security section, said in a one-line resignation letter that he was quitting “to uphold my oath to the Constitution and country.”

Trump quickly reveled in the indictment of his longtime foe, declaring “Justice in America!” and calling Comey “One of the worst human beings this Country has ever been exposed to.” He closed the post with his campaign slogan: “Make America Great Again.”

Prosecutors sought the indictment of the former FBI director just before a Sept. 30 legal deadline that would have put criminal charges out of reach because the statute of limitations would have expired.

Notably, a court document released Thursday night showed the same grand jury refused to indict Comey on a second charge of making a false statement to Congress. The charge jurors balked at pertained to a statement Comey made during the hearing where he appeared to deny having read a report sent to top FBI officials in September 2016 about the Clinton campaign’s interest in using Trump’s alleged Russia ties to distract from her own legal woes.

Justice Department officials did not address the failed charge, but declared that the two felonies leveled at Comey showed justice being done. Each of the two felony charges Comey faces carries a maximum possible penalty of five years in prison.

“No one is above the law,” Attorney General Pam Bondi wrote on X shortly after word of the charges against Comey emerged. “Today’s indictment reflects this Department of Justice’s commitment to holding those who abuse positions of power accountable for misleading the American people. We will follow the facts in this case.”

New York Times, News Analysis, Trump Gets the Retribution He Sought, and Shatters Norms in the Process, Alan Feuer, Jonah E. Bromwich and Maggie Haberman, Sept. 26, 2025 (print ed.). A prosecutor’s drive to indict James Comey trampled over the Justice Department’s long tradition of keeping a distance from politics and the White House, and raised the prospect of more arbitrary charges.

The clearest way to understand the extraordinary nature of the indictment on Thursday of James B. Comey, left, the former F.B.I. director, is to offer up a simple recitation of the facts.

An inexperienced prosecutor loyal to President Trump, in the job for less than a week, filed criminal charges against one of her boss’s most-reviled opponents. She did so not only at Mr. Trump’s direct command, but also against the urging of both her own subordinates and her predecessor, who had just been fired for raising concerns that there was insufficient evidence to indict.

The charges, which were filed around 7 p.m. in Federal District Court in Alexandria, Va., thrust the Justice Department into perilous new territory. The push for the indictment trampled over the agency’s long tradition of maintaining distance from the White House and resisting political pressure, and it raised the prospect of further arbitrary prosecutions pushed by Mr. Trump against his enemies.

Heightening the break-glass moment, the felony charges against Mr. Comey, who stands accused of making false statements and obstructing justice, were rushed into court as Mr. Trump’s handpicked prosecutor, Lindsey Halligan, hurried to beat the quickly approaching statute of limitations on Mr. Comey’s purported crimes.

The rush to prosecute Mr. Comey was the clearest example yet of how the normal process of justice has been reversed under Mr. Trump, showing how the president came into his second term with targets already in mind and ultimately pressured the Justice Department, over a degree of internal resistance, into finding a way to charge a former director of the F.B.I.

Ms. Halligan, who had been working as a top official in the White House staff secretary’s office and had previously served as a personal lawyer for Mr. Trump, had until now never prosecuted a single case in her career.

Mr. Trump nevertheless appointed her as interim U.S. attorney in the Eastern District of Virginia on Monday afternoon, after publicly berating Attorney General Pam Bondi, left, on Saturday night for not moving more aggressively to prosecute Mr. Comey and two other figures who are longtime targets of his retribution campaign, Letitia James, New York’s attorney general, and Senator Adam B. Schiff, Democrat of California.

Although Ms. Halligan had not been fully briefed on the Comey case before arriving and despite an energetic effort by the career professionals under her to dissuade her from bringing charges, she did exactly that. In a highly unusual move for a top federal prosecutor, she personally presented the case against Mr. Comey to the grand jury, according to two people familiar with the matter. 

National Review, Analysis: Was Lindsey Halligan Validly Appointed as United States Attorney? Ed Whelan, right, Sept. 26, 2025. Ed Whelan holds the AntoninScalia Chair in Constitutional Studies at the Ethics and Public Policy Center. A regular contributor to National Review’s blog Bench Memos, he has closely covered every Supreme Court confirmation since 2005.

There is a lot that is outrageous about the process that resulted in yesterday’s indictment of James Comey. I will focus here on what appears to be a fatal legal flaw.

As I understand the facts, it seems highly doubtful that Lindsey Halligan has been validly appointed as United States Attorney in the Eastern District of Virginia. If her appointment is invalid, so is her indictment of Comey.

Section 546 of Title 28 of the United States Code authorizes an Attorney General to appoint an interim United States Attorney for a term of 120 days. Under section 546(d), once the 120-day term expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”

Acting Attorney General James McHenry evidently appointed Erik Siebert as interim United States Attorney on January 21, 2025. After his 120-day term expired, the judges of the Eastern District of Virginia appointed him to continue to serve.

On May 6, President Trump nominated Siebert to be United States Attorney. His nomination had advanced to the Senate floor when Trump learned that Siebert had “told senior Justice Department officials that investigators found insufficient evidence to bring charges against [New York attorney general Letitia] James and had also raised concerns about a potential case against Mr. Comey.” Siebert then resigned as interim United States Attorney, or Trump fired him. (Trump insists on the latter: “He didn’t quit, I fired him!”)

Can the Attorney General make a second interim appointment under section 546 when the first interim appointment has expired? The most natural reading of section 546 is that the authority to make the interim appointment then lies with the district court. And that’s evidently the position that the Department of Justice itself adopted in a 1986 Office of Legal Counsel opinion written by none other than Samuel Alito, right.That opinion itself might not be in the public domain (update: it is, and here), but a 1993 OLC opinion (p. 3 n. 5) states that the Alito opinion “suggest[s] that the Attorney General may not make successive interim appointments pursuant to section 546.”

That doesn’t mean that the president can’t temporarily fill the office with a pick of his own. As a 2003 OLC opinion by yours truly explains, the Vacancies Reform Act is a separate source of authority. But while there are many individuals whom Trump could have appointed as “acting” United States Attorney pursuant to the Vacancies Reform Act, Halligan doesn’t qualify: She isn’t serving as a Senate-confirmed officer in another position, and she hadn’t been in the Department of Justice at all, much less for the 90 days required.

So it should be a simple matter for the federal district judge to dismiss Halligan’s indictment of Comey.

On the substance of the indictment, I defer to Andy McCarthy, who writes that the indictment “is so ill-conceived and incompetently drafted [that Comey] should be able to get it thrown out on a pretrial motion to dismiss. 

National Review, Analysis: The Indictment Against Comey Should Be Dismissed, Andrew C. McCarthy, right (a senior fellow at National Review Institute, a former federal prosecutor, and author of “Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency”), Sept. 26, 2025. It’s an incomprehensible case. 

Jim Comey has a dilemma.

The vindictive indictment the Trump Justice Department barely managed to get a grand jury to approve on Thursday is so ill-conceived and incompetently drafted, he should be able to get it thrown out on a pretrial motion to dismiss. Legally, he’ll be entitled to that, and it would short-circuit the very expensive and punitive litigation process.

Yet, the case has been randomly assigned to a Biden-appointee in the Eastern District of Virginia, Judge Michael Nachmanoff. If Judge Nachmanoff throws the case out pretrial, President Trump and his supporters will rail that the fix was in.  

Legal AF, Trump Comey INDICTMENT HEADED for DISMISSAL Already?!?! Michael Popok, Sept. 26, 2025. Popok digs deep into the late night indictment of Former FBI Director James Comey and, bringing the receipts and video clips, explains how weak it really is for perjury and obstruction and why Comey has a very good shot at convincing Judge Nachmanoff (a Biden appointee) to dismiss it early.

July 16

Fired federal prosecutor Maureen Comey, left, is shown in a collage with one of her convicted targets, sex trafficker and Trump friend Ghislaine Maxwell, now serving a 20-year prison term after convictions for trafficking young women with the late financier Jeffrey Epstein.

ABC News, Maurene Comey, federal prosecutor in Sean ‘Diddy’ Combs and Ghislaine Maxwell cases, fired: Sources, Katherine Faulders, Mike Levine, and Aaron Katersky, July 16, 2025. Comey is the daughter of former FBI director James Comey. According to sources, President Donald Trump privately vented about having a Comey work in his administration.

The Justice Department on Wednesday fired Maurene Comey from the United States Attorney’s Office for the Southern District of New York, where she most recently led the prosecution of Sean “Diddy” Combs, multiple sources told ABC News.

A spokesman for the U.S. Attorney’s Office in Manhattan declined to comment. A spokesperson for the Justice Department did not immediately respond to a call for comment.

Comey was a highly regarded assistant U.S. attorney who successfully prosecuted Ghislaine Maxwell, the former associate of sex offender Jeffrey Epstein, and multiple gang members before the split verdict earlier this month in the trial of Combs, who was convicted of a prostitution-related charge but acquitted of more serious charges.

Comey was also involved in the office’s case against Epstein, who died by suicide in 2019 at New York City’s Metropolitan Correctional Center while he was awaiting trial on federal sex trafficking charges.

Comey is the daughter of former FBI director James Comey, who President Donald Trump fired during his first term in office because he initiated the Russia investigation.

According to sources, Trump privately vented about having a Comey work in his administration.

This marks the latest shake-up for the nation’s most prominent federal prosecutor’s office.

In April, the office’s top prosecutor, Matthew Podolsky, agreed to step aside, clearing the way for Trump to install Jay Clayton, his nominee for interim U.S. attorney for the Southern District of New York,

Podolsky had taken over for Danielle Sassoon, who in February resigned in protest of the Justice Department’s order to drop corruption charges against New York Mayor Eric Adams.

Sassoon had been named interim U.S. attorney by Trump when the president fired Edward Kim, who assumed the role during the change in administrations.

James Prosecution: In Depth 

Letitia James has only once reported rental income associated with the house. In 2020, she said that she had made between $1,000 and $5,000 from it (New York Times photo by Gregg Vigliotti).

Oct. 11

New York Times, In the Eye of a Political Storm, a Tiny Yellow House in Norfolk, Va., Jonah E. Bromwich, Kate Kelly and Stefanos Chen, Oct. 11, 2025. Attorney General Letitia James of New York purchased the $137,000 home for a grandniece who needed tranquillity. Prosecutors say it is an impermissible investment property.

Five years ago, the door of a modest yellow house on a quiet stretch of avenue in Norfolk, Va., swung open to admit a young family looking for a peaceful life after years of turbulence in several cities.

The family, Nakia Thompson and her children, have lived at the address ever since, according to two people familiar with the home, and until this week, the plan for a more placid existence had largely gone as expected. Several times a year, the people said, a great-aunt who had purchased the house in 2020 with Ms. Thompson in mind would come for an extended stay.

This week, with the filing of court papers some 200 miles north, the plan came to an abrupt end. The great-aunt — Letitia James, the New York attorney general — was indicted by President Trump’s Justice Department. The yellow house, with its gabled roof and tidy lawn, was revealed to be at the heart of the case that Mr. Trump’s chosen prosecutor brought against Ms. James, one of the president’s most prominent adversaries.

In the indictment, the prosecutor, Lindsey Halligan, accuses Ms. James of having misrepresented the purpose of the house when she purchased it in August 2020 for $137,000. The indictment says that while Ms. James indicated to her mortgage broker that she expected to use the house as a second home, she had instead used it as a “rental investment property, renting the property to a family.”

But in June, Ms. Thompson testified to a grand jury in Norfolk that she had lived in the house for years and that she did not pay rent, a person familiar with her testimony said. She was not asked to testify again, and the grand jury that voted to indict Ms. James was not seated in Norfolk, but in Alexandria.

The specter of Mr. Trump’s revenge campaign has so far overshadowed the facts of the case, given how he has pushed for Ms. James’s punishment. For years, he has railed against her on social media, calling her a “crook” and “corrupt.” Last month, he also appointed Ms. Halligan, once one of his personal lawyers, to replace Erik S. Siebert, the previous U.S. attorney in Eastern Virginia. Mr. Siebert had cast doubt on the case, as had career prosecutors in the office.

That sequence of events has prompted outrage from Democrats and even some Republicans, as has the paltry amount Ms. James is accused of having stood to gain — $18,933. But Mr. Trump’s allies celebrated the indictment, calling it airtight and suggesting that it represents fair play against a state attorney general who had sued Mr. Trump in 2022, accusing him of “staggering fraud.”

A lawyer for Ms. James, Abbe D. Lowell, has flatly denied the charges on her behalf. Ms. Halligan, in a statement, said that they represented “tremendous breaches of the public’s trust.”

Ms. Thompson and Ms. James’s yearslong use of the house and Ms. Thompson’s testimony to the grand jury — neither of which has been previously reported — illuminate the straightforward factual dispute that will animate the case. Real estate and legal experts said that it would be difficult to assess the strength of Ms. Halligan’s case until more facts were presented in court.Editors’ PicksAfter a Crisis, ‘a Miracle’ Gave Them a Second Chance in BerkeleyWhy Can’t Fashion See What It Does to Women?In This Pageant, the Ugliest Face Wins

But the burden of proof is high. If the case makes it to trial, the charges, one of bank fraud and one of false statements to a financial institution, will require prosecutors to convince a jury that Ms. James intentionally misled the mortgage broker, OVM Financial, and First Savings Bank, which, according to the indictment, acquired the loan in 2021.

Ms. Thompson’s testimony that she has lived in the house rent-free — Ms. James pays even for basic upkeep, the people said — could make it difficult for prosecutors to convince a jury that the house was meant to be used as a rental investment property.

A Justice Department spokesman declined to comment.

“The question is, what is the proof and what are the facts,” said Stuart Slotnick, a former prosecutor who heads the New York City office of Buchanan, Ingersoll and Rooney, concentrating in part on real estate litigation. “James is claiming that she was singled out,” he said. “And at the same time, this indictment can be legally sufficient. They’re not mutually exclusive and they can both be true.”

The case will ride in part on the legal definition of real estate terms — in particular, distinctions in what Fannie Mae, the government enterprise that backs the mortgage market, refers to as occupancy types. In 2020, the year the house was purchased, Fannie Mae noted in its guide to the market that a second home must be occupied by a borrower “for some portion of the year,” and “must not be a rental property or a timeshare agreement.”

That is where Ms. James’s regular visits to the property to see her grandniece and other family, including Ms. Thompson’s mother, who also lives in a Norfolk home Ms. James owns, may be useful to the attorney general’s defense team.

An investment property, by contrast, is owned, but not occupied, by the borrower. A “rental investment property” is not a specific occupancy type, and, in its glossary, the Fannie Mae guide from 2020 does not define the term “rent” or “rental.”

Mortgages on investment properties often carry higher interest rates because they are inherently riskier; the owner’s expectations of regular rent could be upended by a shifting market or an unreliable tenant.

Under the terms of a document that amended Ms. James’s mortgage agreement, she was expected to use the Norfolk property as a second home, with the exception of occasional, short-term rentals, according to the documents and to real-estate experts who analyzed them for the Times.ImageCars along a road in Norfolk, Va.The quiet Norfolk neighborhood that includes the yellow house is at the center of a noisy national battle.Credit…Kristen Zeis for The New York Times

Beginning 12 months after the deed was signed, Ms. James had wider latitude to use the property as she wished, according to the document and the experts. “After a year, people’s circumstances change,” said Clifford Rossi, a University of Maryland finance professor who once oversaw risk management for Citi’s consumer lending practice.

That caveat raises questions about when exactly prosecutors believe that Ms. James used the property as a rental. The indictment does not include those dates.

Mr. Rossi said that during his years at Citi, he saw cases in which a parent allowed an adult child to live in a second home rent-free — prompting the bank to consider pursuing the matter in court as a violation of the original borrower agreement. Citi’s lawyers, he recalled, often advised against doing so.

“We were told by counsel basically to stand down, that it would be very difficult to prove that out in a court of law, because there’s a lot of gray in these cases,” he said.

Mr. Rossi said that at times, tax documents would reveal that a borrower had been collecting rent despite classifying a property as a second home. That would be a red flag, he said, to see if the borrower had misled the lender. “It would warrant further scrutiny,” he said.

The indictment suggests that Ms. James collected at least some rental income, saying that she filed a tax form where she reported “thousand(s) of dollars of rents received.” It does not say in what year those forms were filed.

On New York State annual financial disclosures that Ms. James is required to file as attorney general, she has only once listed rental income associated with the Norfolk house. In 2020, she said that she had made between $1,000 and $5,000 in income from it. In the following years, she did not list any income from the house.

She did, however, list the house as an “investment property” from the year she bought it until the disclosure she made this year, once she was already under investigation.

On Friday morning, children’s toys were scattered across the front porch of the house. A woman answered the doorbell intercom: “No comment,” she said, before curtly noting a no-trespassing sign.

A neighbor, Jacob Neufeldt, a Navy sailor who said he had lived next to the house for several years, was more forthcoming.

Mr. Neufeldt said he hadn’t had much contact with Ms. Thompson in the last month, though he knew her well enough to refer to her by her first name. He expressed astonishment that the drama unfolding in New York and Washington all sprang from a two-story colonial on his quiet, neighborhood block.

Oct. 10  

New York Times, James Indictment Mirrors Her Civil Case Against Trump in Miniature, Jonah E. Bromwich and Devlin Barrett, Oct. 10, 2025. The president and New York’s attorney general accused each other of real estate fraud. But the sum involved in her case is $18,933, while millions were at stake in his.

It has long been President Trump’s impulse to tar his enemies with the same accusations they have lobbed at him.

And his Justice Department’s criminal case against the New York attorney general, Letitia James, above, carries echoes of the civil fraud case she brought against him — albeit at a scale so small that most federal prosecutors would never deign to pursue it.

The indictment, less than a month after Mr. Trump publicly exhorted the Justice Department to pursue Ms. James, accuses her of violating a mortgage agreement on a Virginia house she purchased in 2020 by using it as a rental property.

The case is a fresh reminder of how the president has taken the Justice Department in hand and directed its prosecutorial powers toward his adversaries. Ms. James is the second of his enemies to be indicted in the past two weeks after he insisted that a case be pursued. Just five days before the charges against Ms. James were handed up, he called her “corrupt” and “scum” on his social media platform and said she should be removed from the New York attorney general’s office.

The indictment charges Ms. James with one count apiece of bank fraud and false statements to financial institutions and says that by misrepresenting her intentions for the house, she received favorable terms that would have allowed her to save $18,933 over the life of the loan.

A federal case concerning such a small sum would be highly unusual even absent the politics shadowing the charges against Ms. James, and the indictment’s factual claims are likely to be disputed. A person familiar with Ms. James’s housing arrangements said that the property had never been used as a rental and was occupied by Ms. James’s family members. There was no rental agreement and Ms. James has continued to pay the mortgage, said the person, who was not authorized to speak publicly.

Ms. James is set to appear in a Virginia court on Oct. 24. It is likely that she will seek to persuade a judge to dismiss the charges before a trial, arguing that they stem from a vindictive and selective prosecution. But the stakes are high — if convicted, Ms. James faces the possibility decades in prison.

In a statement, a lawyer for Ms. James, Abbe D. Lowell, said that Ms. James “flatly and forcefully denies these charges.”

“We are deeply concerned that this case is driven by President Trump’s desire for revenge,” he wrote. “When a president can publicly direct charges to be filed against someone — when it was reported that career attorneys concluded none were warranted — it marks a serious attack on the rule of law.”

The immediate circumstances surrounding the indictment of Ms. James on Thursday were unusual in several respects.

The case, which was brought in the Eastern District of Virginia, is expected to proceed in Norfolk, but was presented before a grand jury in Alexandria, just outside Washington, D.C.

Like the Trump Justice Department’s case against the former F.B.I. director James B. Comey, another nemesis of the president, it was brought by Lindsey Halligan, above, a former personal lawyer to Mr. Trump with no prior experience as a prosecutor. The president pushed out Ms. Halligan’s predecessor, Erik S. Siebert, for expressing skepticism about cases against Ms. James and Mr. Comey.

Also like the Comey case, Ms. Halligan was the only prosecutor whose name appeared on the indictment. In most cases, the rank and file prosecutors who handled the investigation sign the court filings.

In recent weeks, career prosecutors in the Norfolk division of the U.S. attorney’s office had looked at the evidence against Ms. James and believed it did not merit criminal charges, according to people familiar with the matter who spoke on the condition of anonymity to describe an ongoing case. A senior prosecutor in that division relayed that determination to her superiors, according to the people.

Despite that, Ms. Halligan chose to proceed.

As Ms. James knows firsthand, even civil fraud cases, which have a lower burden of proof than criminal cases, can be difficult to win. Though she initially triumphed in the civil fraud trial of Mr. Trump, which was overseen by a New York judge, a state appellate court recently threw out the half-billion dollar penalty. The appeals panel reached a shaky agreement to uphold the finding that Mr. Trump was liable for fraud, but only so that the entire case could be evaluated by the state’s highest court.

Still, Mr. Trump was humiliated by Ms. James’s lawsuit and the subsequent trial, which took aim at one of his most prized assets: his public image as a self-made billionaire. Ms. James accused him of a yearslong pattern of exaggerating his net worth on annual financial statements in order to receive favorable loan terms from banks and insurers.

Her case was years in the making. When Ms. James ran to be New York attorney general in 2018, she pledged to investigate Mr. Trump and his family business. One of her refrains was “No one is above the law.”

She was elected and, the following year, opened an inquiry into Mr. Trump predicated on congressional testimony from his former fixer, Michael D. Cohen.

In 2022, Ms. James sued Mr. Trump, accusing him of inflating his net worth by billions of dollars, and the following year, she took him to trial, where the value of individual properties in his empire — many of them worth multiples of what Ms. James is accused of retaining in ill-gotten gains — was closely scrutinized.

Both Ms. James and Mr. Trump attended the trial regularly, sitting just feet from one another.

Mr. Trump pledged revenge before the case even reached a conclusion. In January 2024, he took over the microphone during the fraud trial’s closing arguments and fumed at Ms. James directly, saying that her case was in fact “a fraud on me.” Ms. James, he said, “should pay me for what we had to go through.”

The following year, in April, Bill Pulte, the head of the Federal Housing Finance Agency, initiated the case against Ms. James. He sent a criminal referral to the Justice Department suggesting that the New York attorney general “appeared to have falsified records” and indicated that she might have committed mortgage fraud.

Mr. Pulte has since targeted other enemies of Mr. Trump with similar allegations. But the accusations against Ms. James are the first to make their way into an indictment.

Mr. Pulte celebrated on Thursday evening, promoting a social media post that said, “Bill Pulte doesn’t play. They all thought their mortgage scams were safe. They were wrong. This is just the beginning.”

Ms. Halligan, the U.S. attorney who secured the indictment, issued her own statement. It began with a familiar phrase: “No one is above the law.”

The Bulwark, Opinion: One Size Fits All, Andrew Egger, right, Oct. 10, 2025. One of the most insidious things about Donald Trump’s decade-long turn atop our politics is the way it has seared our political conscience. For years, it has been a cliché to call his various awful behaviors and decisions “shocking, but not surprising.” These days, however, we seem to be losing some of our inability even to feel the shock.

You could see this in some of the early reactions last night to the news of Letitia James’s indictment on two counts of mortgage fraud.

The New York attorney general has been near the top of Trump’s enemies list for a while, and literally nobody—at least that I can dig up—seems to be trying to argue that this indictment isn’t an act of naked political retribution. (To be fair, arguing this would be difficult after Trump removed all doubt last month by accidentally putting a post out in public that he had meant to send as a DM to Attorney General Pam Bondi demanding James’s prosecution.)

Instead, the Republican line—parroted by some who should really know better—is that this is a justified act of retribution, in some sort of street-justice sense. Or if not justified, at least understandable, from Trump’s point of view: They tried to get him, now he’s trying to get them. Most charitably, they say, it is an unfortunate tit-for-tat that can’t go on indefinitely—but also a situation in which Trump is just one bad actor in a cast of many.

An editorial from the new-look, more Trump-forgiving Washington Post editorial board this week cast the current moment along those lines. “Many Democrats still cannot see how their legal aggression against Trump during his four years out of power set the stage for the dangerous revenge tour on which he is now embarked,” it mourned. Those who were trying to hold Trump accountable had “show[n] little restraint” in their investigations—a big part of why he was now “showing still less restraint” while hitting back. It’s unfortunate that he lashed out at you like that—but maybe you shouldn’t have made him so mad.

We should be clear about this. There is no comparison between the acts Letitia James took as attorney general of New York to hit Trump’s companies and the ones he is now taking to hit “back” at her. The difference between them is not the difference between a lesser act of political malice and a greater one. (Although it is worth noting the massive difference of scale here: While James’s civil suit accused Trump’s companies of pocketing hundreds of millions of dollars off a years-long practice of misrepresenting properties, the indictment against James accuses her of filing a misleading loan application and coming out ahead less than $20,000.) It’s the difference between the application of law and the application of raw power.

When people accuse James of “lawfare,” or of pursuing a “politicized” civil fraud case against Trump, they mean that she pursued that case with a zeal they believe she would not have shown against another target. Could be! But her fundamental case, as the New York Times noted last month, was not unreasonable. It was rooted in sworn testimony Trump’s former personal lawyer Michael Cohen, right, had made before Congress that Trump habitually inflated the value of his properties to get favorable treatment in loans.

She won her civil case against Trump at trial. This year, an appeals court vacated the financial penalty the initial judge had handed down, but did not vacate Trump’s civil liability. Trump had his day to argue in court that James’s investigations into him were vindictive and politically motivated—and the courts threw that argument out.

Now consider Trump. As he staffed out his administration with lickspittles and cronies, he didn’t just instruct them to look into James to see what they could rustle up. Instead, he twisted the entire federal government into a shape designed to produce the criminal indictment he demanded.

The roots of the mortgage-fraud claim into James weren’t anything he came by honestly: They were the results of a fishing expedition carried out by Bill Pulte, who has used the Federal Housing Finance Agency, which he directs, as a databank to plumb for information on a host of Trump enemies. When that pretext didn’t prove compelling enough to the first Trump-appointed U.S. prosecutor with jurisdiction, the president canned that prosecutor and moved on to someone he was sure would give him the result he wanted: his former personal attorney Lindsey Halligan. Halligan, sure enough, has now done so.

Just how unjust a campaign of retribution this will turn out to be remains to be seen. It’s possible, of course, that Pulte’s muckraking turned up actual wrongdoing on James’s part—though James vigorously denies this and Halligan’s non-compromised predecessor seemed to agree. We’ll get to find out, as James will still geta trial—no matter how much Trump, who already says he knows her to be “guilty as hell,” might want to skip ahead.

Still, it’s important to be lucid about where we are. This isn’t Trump escalating a fight James started. It’s Trump being Trump the only way he knows how: smashing, smashing, and smashing until the last irritating opponent is gone from his sight.

Civil Discourse, What You Need To Know About The Tish James Indictment, Joyce Vance, right, Oct. 10, 2025. A recording from Joyce Vance and Preet Bharara’s live video.

This morning, my former U.S. Attorney colleague, and current podcast co-host, Preet Bharara, and I dug into the federal indictment of New York Attorney General Tish James. It’s five pages long and you can read it here. James is charged, in a barebones indictment, with bank fraud and making false statements.

James’ indictment had long been rumored. The expectation was that it would involve a second home she had purchased. But when the indictment came, it was a different house and a different allegation. Preet and I explain the details and outline the weaknesses of the indictment in our chat, which you can watch above or click to review the transcript. 

The Bulwark, Opinion: One Size Fits All, Andrew Egger, right, Oct. 10, 2025. One of the most insidious things about Donald Trump’s decade-long turn atop our politics is the way it has seared our political conscience. For years, it has been a cliché to call his various awful behaviors and decisions “shocking, but not surprising.” These days, however, we seem to be losing some of our inability even to feel the shock.

You could see this in some of the early reactions last night to the news of Letitia James’s indictment on two counts of mortgage fraud.

The New York attorney general has been near the top of Trump’s enemies list for a while, and literally nobody—at least that I can dig up—seems to be trying to argue that this indictment isn’t an act of naked political retribution. (To be fair, arguing this would be difficult after Trump removed all doubt last month by accidentally putting a post out in public that he had meant to send as a DM to Attorney General Pam Bondi demanding James’s prosecution.)

Instead, the Republican line—parroted by some who should really know better—is that this is a justified act of retribution, in some sort of street-justice sense. Or if not justified, at least understandable, from Trump’s point of view: They tried to get him, now he’s trying to get them. Most charitably, they say, it is an unfortunate tit-for-tat that can’t go on indefinitely—but also a situation in which Trump is just one bad actor in a cast of many.

An editorial from the new-look, more Trump-forgiving Washington Post editorial board this week cast the current moment along those lines. “Many Democrats still cannot see how their legal aggression against Trump during his four years out of power set the stage for the dangerous revenge tour on which he is now embarked,” it mourned. Those who were trying to hold Trump accountable had “show[n] little restraint” in their investigations—a big part of why he was now “showing still less restraint” while hitting back. It’s unfortunate that he lashed out at you like that—but maybe you shouldn’t have made him so mad.

We should be clear about this. There is no comparison between the acts Letitia James took as attorney general of New York to hit Trump’s companies and the ones he is now taking to hit “back” at her. The difference between them is not the difference between a lesser act of political malice and a greater one. (Although it is worth noting the massive difference of scale here: While James’s civil suit accused Trump’s companies of pocketing hundreds of millions of dollars off a years-long practice of misrepresenting properties, the indictment against James accuses her of filing a misleading loan application and coming out ahead less than $20,000.) It’s the difference between the application of law and the application of raw power.

When people accuse James of “lawfare,” or of pursuing a “politicized” civil fraud case against Trump, they mean that she pursued that case with a zeal they believe she would not have shown against another target. Could be! But her fundamental case, as the New York Times noted last month, was not unreasonable. It was rooted in sworn testimony Trump’s former personal lawyer Michael Cohen, right, had made before Congress that Trump habitually inflated the value of his properties to get favorable treatment in loans.

She won her civil case against Trump at trial. This year, an appeals court vacated the financial penalty the initial judge had handed down, but did not vacate Trump’s civil liability. Trump had his day to argue in court that James’s investigations into him were vindictive and politically motivated—and the courts threw that argument out.

Now consider Trump. As he staffed out his administration with lickspittles and cronies, he didn’t just instruct them to look into James to see what they could rustle up. Instead, he twisted the entire federal government into a shape designed to produce the criminal indictment he demanded.

The roots of the mortgage-fraud claim into James weren’t anything he came by honestly: They were the results of a fishing expedition carried out by Bill Pulte, who has used the Federal Housing Finance Agency, which he directs, as a databank to plumb for information on a host of Trump enemies. When that pretext didn’t prove compelling enough to the first Trump-appointed U.S. prosecutor with jurisdiction, the president canned that prosecutor and moved on to someone he was sure would give him the result he wanted: his former personal attorney Lindsey Halligan. Halligan, sure enough, has now done so.

Just how unjust a campaign of retribution this will turn out to be remains to be seen. It’s possible, of course, that Pulte’s muckraking turned up actual wrongdoing on James’s part—though James vigorously denies this and Halligan’s non-compromised predecessor seemed to agree. We’ll get to find out, as James will still geta trial—no matter how much Trump, who already says he knows her to be “guilty as hell,” might want to skip ahead.

Still, it’s important to be lucid about where we are. This isn’t Trump escalating a fight James started. It’s Trump being Trump the only way he knows how: smashing, smashing, and smashing until the last irritating opponent is gone from his sight.

Oct. 9 

Emptywheel, Analysis: Next Up, Tish James, Emptywheel (Marcy Wheeler, right), Oct. 9, 2025. Tish James was indicted on two counts by Trump’s personal lawyer.

The indictment of Tish James on bank fraud and lying to a financial institution is here. Once again, Lindsey Halligan alone signed it.

Her video statement, which focuses on Trump’s fraud, is very good.

Hopium Chronicles, Pro-Democracy Advocacy, AG Letitia James’ Powerful Response To Trump: “I am not fearful – I am fearless,” Simon Rosenberg, right, Oct. 9, 2025. Late this afternoon the Trump regime indicted New York Attorney General Letitia James (NYT gift link). I don’t often send two emails in a day but her video response was so powerful that I wanted to make sure everyone got to see it. It is above.

Here is what I posted on Bluesky, a sentiment that builds on my recent post, Every Democrat Must Now Join The Fight Again Trump’s Escalating, Dangerous, Traiterous Authoritarianism: Note how aggressive Leader Schumer’s statement was this afternoon: “This is what tyranny looks like. President Trump is using the Justice Department as his personal attack dog, targeting Attorney General Tish James for the ‘crime’ of prosecuting him for fraud—and winning.”

One U.S. Attorney already refused this case. So, Trump hand-picked an unqualified hack that would go after another political enemy. This isn’t justice. It’s revenge. And it should horrify every American who believes no one is above the law.  

Source: https://www.justice-integrity.org/2147-experts-cite-big-flaws-abuses-in-trump-doj-charges-against-fbis-comey-nys-james