Donald Trump’s multiple public statements demanding the prosecution of former FBI Director James Comey delivered Comey’s defense team arguments to get the case thrown out.
Former federal prosecutor and Daily Beast guest columnist Shan Wu told The Daily Beast Podcast that the president’s public lust to prosecute Comey—which includes a Truth Social post addressed to Attorney General Pam Bondi demanding she prosecute the 64-year-old former FBI director—has poisoned his chances of securing the conviction he desperately wants.
“The main argument Comey’s people are probably going to make is selective prosecution, meaning he was picked out because he opposes Trump,” said Wu. “Probably not going to go all way to the [Supreme Court]. Usually that would be heard at the district court level, the trial judge. And the judge rules one way or the other, and it’s probably not going to keep going at this point.”
As Wu summarized in a Sept. 27 piece for The Daily Beast about the case, Comey is accused of lying to Congress in a Sept. 2020 deposition when he told Ted Cruz he did not authorize a leak to the Wall Street Journal in 2016 made by then-Deputy Director Andrew McCabe. Andrew McCabe said he made the leak himself and told Comey about it afterwards, a sequence of events backed up by Comey’s testimony.
Trump, 79, pressured Eastern District of Virginia attorney Erik Siebert, who he appointed, to resign in part because Siebert did not think there was sufficient evidence to indict Comey on a perjury charge. Trump installed 35-year-old Lindsey Halligan, his personal insurance lawyer and a former beauty pageant contestant, to the district to pursue an indictment against Comey.
Halligan secured the indictment against the advice of lawyers who had already been working on the case for two months. In a statement to the Daily Beast, the White House stood behind Comey’s indictment.
“The Trump Administration will continue to deliver the truth to the American people and restore integrity to our justice system,” White House spokesperson Abigail Jackson told the Beast. “The indictment against Comey, by a grand jury, speaks for itself, and the Trump Administration looks forward to fair proceedings in the courts.”
Wu’s comments echo those of other legal scholars who have said Comey’s defense lawyer, Patrick Fitzgerald, could seek to get the case thrown out on the grounds of vindictive prosecution.
Retired federal Judge John Jones told CNN this week, “It’s a better case for Comey, because the president won’t shut up. And that’s admissible, so he’s got a fighting chance, I think, on vindictive prosecution.”
Wu warned that even if the judge in the case, Biden-appointed Michael Nachmanoff, did not throw the case out on the basis of selective or vindictive prosecution, the case would also need to clear another legal hurdle to even make it to trial: finding an unbiased jury.
“There’s no way to find a place where people haven’t heard about this case,” he said. “And the problem here with that publicity…”
“You need to find the place that has not heard of Donald Trump,” said Daily Beast Executive Editor Hugh Dougherty.
“Exactly,” replied Wu.
“The argument will be this kind of statement from like the world’s biggest bully pulpit is going to taint all of the jury pool,” he went on.
“And it kind of works both ways, too. I mean, you certainly could have people say, I can’t stand the president’s remarks. I can’t stand him. I don’t care if it’s his DOJ. I’m voting against them. So it works to both sides.”
Wu explained that the abundant public comments from Trump are going to work for Comey’s defense team.
“But the defense is going to say these kinds of remarks [like ‘He’s a terrible human being’ are] telling everybody they’re prejudging the case,” the former federal prosecutor said. “That makes it impossible to get a fair trial anyplace on the planet, really. And that’s the argument that’s going to be made.”
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