The defense team James Comey's family announced Wednesday afternoon, on the day Acting Attorney General Todd Blanche unsealed the second EDNC indictment against the former FBI director over the disputed 2025 seashell photograph, has the name on it that everyone in legal Washington was looking for. Patrick Fitzgerald — the former U.S. Attorney for the Northern District of Illinois who served as the Plame-affair special counsel and convicted Scooter Libby — is lead counsel of record. [1] In the brief Wednesday hearing before Magistrate Judge Robert Fitzpatrick, Fitzgerald told the court he intended to move to dismiss on three grounds: vindictive prosecution, selective prosecution, and First Amendment retaliation. The first business day for those motions to be filed is Friday. [2] The paper's Thursday account of the second indictment framed the EDNC charging document as the second prosecutorial product of the Acting AG's office in eight days. The motions Fitzgerald is preparing reframe the indictment from charging document to evidentiary record.

The vindictive-prosecution motion is the document of consequence.

The Fourth Circuit's standard for vindictive prosecution, established in United States v. Wilson (4th Cir. 1988) and refined as recently as 2022, requires a defendant to show either direct evidence of vindictive intent or a sufficient pattern of post-conduct prosecutorial decisions that a presumption of vindictiveness arises. [3] The standard is famously hard to meet. Two former federal prosecutors with EDNC experience told the paper Thursday that no vindictive-prosecution motion has prevailed in the district in at least two decades. The motion, in other words, is unlikely to be granted on its own merits.

That is not its purpose. Its purpose, according to a senior member of Fitzgerald's team who spoke Friday morning on background, is to compile and place before the court — and into the public record — every contemporaneous statement made by Donald Trump, members of his administration, and the Department of Justice about James Comey, from his May 2017 firing through the day of the second indictment. The brief is expected to run to several hundred pages of attached exhibits, organized chronologically and indexed. [4] "It will be," the team member said, "a Federal-Reporter-quality public document about a single American citizen and the people who have wanted him prosecuted for nine years." The team has not confirmed the page count. The brief will be filed under Local Rule 47.1, which permits over-length filings on motion. The motion to file an over-length brief was uploaded to the docket as a notice item Thursday afternoon. [5]

The vindictive-prosecution motion will, on the defense team's stated theory, be paired with two other motions: a selective-prosecution motion built on the absence of comparable charging decisions in the EDNC docket against any other former senior official under any administration, and a First Amendment retaliation motion built on Comey's public commentary about the administration's conduct since 2017. Fitzgerald told Magistrate Judge Fitzpatrick on Wednesday that the First Amendment claim would rest specifically on the speech-versus-prosecution sequencing — the dates of Comey's published commentary, the dates of Trump's public statements demanding his prosecution, and the dates of the resulting EDNC charging decisions. [2] That sequencing is, in the defense's framing, the legal action of the case.

The friendly-right commentariat — Cato Institute legal scholars, Free Press editorial-page writers, and the Federalist Society's white-collar-defense network — has, as of Friday afternoon, almost uniformly conceded that the EDNC indictment will not survive a substantive challenge. Andrew McCarthy, the former Southern District prosecutor and conservative legal commentator who has historically defended Trump-administration prosecutorial decisions, wrote Thursday afternoon that "if the EDNC actually believes it can convict Comey on this set of facts on this evidentiary record, the EDNC has lost its mind." [6] The Cato Institute's white-collar legal team published an unsigned editorial Friday morning calling the second indictment "weaker than the first" and predicting dismissal "well before trial." [7] The Free Press, which had editorialized in favor of accountability for senior officials of the Obama-era national-security state, ran a Bari Weiss column Friday afternoon that described the second seashell-photo indictment as "the case that breaks Acting AG Blanche, not the case that breaks Comey." [8]

The Acting Attorney General's office has not commented on the defense filings. A spokesperson reached late Thursday referred all questions to the EDNC's lead prosecutor on the case, Assistant U.S. Attorney Margaret Abernathy, who declined to comment. [9] The U.S. Attorney's Office for the Eastern District of North Carolina has not yet filed a response to Fitzgerald's notice of intent to file the motions.

What the brief will actually accomplish — beyond its likely fate of denial — is the second order of action. Catalogues that go into Federal Reporter records have a long tail. The Plame brief Fitzgerald himself authored in 2007 became, in the years that followed, the canonical historical document of the Libby case; its citation pattern in subsequent law-review work runs into the hundreds. [10] A vindictive-prosecution brief that catalogues nine years of public statements by a sitting president and his Department of Justice about a single named target is, on its face, the kind of document that historians of the period will use as the primary source. The motion is the archive.

The trial schedule, set Wednesday by Magistrate Judge Fitzpatrick, has the case on a six-month track with a status conference June 12, motion deadlines July 24, and a tentative trial date in October. [2] Fitzgerald's brief will likely be filed early next week, the team said. The Acting AG's office will have thirty days to respond. By the second week of June, the docket will contain — under the magistrate's electronic-filing protocols, fully public — the largest concentrated catalog of Trump-administration statements about James Comey ever compiled.

Whatever the court does with the motion, the catalog will be there.

-- SAMUEL CRANE, Washington