Patrick Fitzgerald told an Eastern District of Virginia magistrate last week that he will move to dismiss the second indictment of former FBI director James Comey on vindictive-prosecution grounds, a filing the defense expects to anchor with the public hiring of Joe diGenova into the Justice Department's "grand conspiracy investigation" by Acting Attorney General Todd Blanche. [1][2] First Amendment challenges are expected as a parallel track. The motion has not yet been filed, but the magistrate set the briefing schedule on the assumption that it will be the threshold issue. [1]

The first indictment of Comey was thrown out by U.S. District Judge Cameron McGowan Currie in November on grounds that the U.S. Attorney who signed it, Lindsey Halligan, had been improperly appointed under the Federal Vacancies Reform Act. [1] Fitzgerald's statement on that ruling — "the decision further indicates that because the indictment is void, the statute of limitations has run and there can be no further indictment" — was the defense's bet that the case would not be re-charged. [3] It was. The second indictment came down in April from a properly appointed acting U.S. attorney; Fitzgerald's pivot is to argue the second indictment exists because of, not despite, his client's protected speech.

Vindictive prosecution is the legal theory that a charging decision was made to punish a defendant for exercising a constitutional right — most often the right to challenge a prior prosecution, or the right to speak publicly about the government. The doctrine is narrow. Defendants almost always lose. The exception is when the record contains direct evidence of retaliatory intent, often in public statements by the prosecutor or by the official who ordered the prosecution. The Comey defense believes the record now has that evidence.

The exhibit is diGenova. Blanche brought him in for the "grand conspiracy investigation" — a phrase Justice Department officials have used in conversations with reporters and in court filings — and diGenova has spoken publicly and at length about whom he wants prosecuted and why. Anna Bower, writing on X, named the doctrinal use of those statements: "if criminal charges are brought against Comey, Brennan, or others, the defense will almost certainly cite diGenova's own account of his hiring in a motion to dismiss for selective or vindictive prosecution." [4] Fitzgerald's filing is expected to do exactly that.

Justice Department prosecutors have already filed a response in a related Comey motion last fall, and that brief surfaced what Bower called "an important question about the government's case against Comey: Where's the lie?" [5] The lying-to-Congress charge that anchors the second indictment turns on whether Comey's 2020 testimony to the Senate Judiciary Committee — about whether he authorized leaks of classified information — was knowingly false. The defense will argue, in addition to the vindictive-prosecution motion, that the lie itself is not visible in the transcript.

The procedural posture is that Fitzgerald himself is also under DOJ pressure: Justice Department prosecutors indicated last fall they may seek to have him removed as Comey's lead defense attorney on conflict grounds, citing the 2017 memos Comey shared with him. [6] Sean Davis and other right-side accounts have framed Fitzgerald as a "leak conduit" for Comey going back nearly a decade. [7] Fitzgerald has not been removed. Currie's ruling on the first indictment did not reach the conflict question, and the second indictment's docket leaves the issue open.

What the magistrate set last week is a calendar, not a ruling. The vindictive-prosecution motion will be briefed before any trial-track motions; the government's response is expected within thirty days; oral argument follows. If the motion survives — even partially — the case becomes about Blanche, diGenova, and the public statements that animated the second indictment, not about Comey's 2020 testimony.

That is the reframe Fitzgerald is buying. Whether he gets it depends on a doctrine that almost always loses.

-- SAMUEL CRANE, Washington