Lawyers for James B. Comey, the former F.B.I. director, mounted an opening defense on Monday against the criminal charges he is facing, arguing that the Trump administration brought the case as vindictive retribution and contesting the appointment of the handpicked prosecutor who secured the indictment.
The twin motions, filed in Federal District Court in Alexandria, Va., began a two-front assault against the charges of perjury and obstruction of Congress. One challenged the case on a procedural basis, and another claimed it was an example of political revenge by President Trump. Additional motions to dismiss the case are expected to be filed later this month.
Last month, in a move that obliterated the longstanding tradition of the White House keeping distance from the affairs of the Justice Department, Mr. Trump publicly ordered his attorney general, Pam Bondi, to prosecute Mr. Comey, one of his most reviled adversaries. His demands came shortly after the president ousted the U.S. attorney for the Eastern District of Virginia who had refused to indict Mr. Comey and replaced him with a neophyte prosecutor who quickly filed charges in what turned out to be the first criminal case she had handled.
Those remarkable circumstances sat at the heart of Mr. Comey’s vindictive prosecution motion, which accused Mr. Trump of ordering the Justice Department to seek an indictment “because of personal spite and because Mr. Comey has frequently criticized the president for his conduct in office.”
“Bedrock principles of due process and equal protection have long ensured that government officials may not use courts to punish and imprison their perceived personal and political enemies,” his lawyers wrote. “But that is exactly what happened here.”
Traditionally, motions for vindictive prosecution are exceedingly hard to win. They require defendants to prove that prosecutors have displayed animus toward them while they were seeking to exercise their rights, and that the charges would never have been brought except for that animus.
But Mr. Trump has most likely eased the road for Mr. Comey’s lawyers by his constant public attacks against their client and his seeming inability to stay silent about the case. Mr. Comey’s legal team — led by his friend and onetime colleague, Patrick J. Fitzgerald, an former federal prosecutor — had so many examples of Mr. Trump’s animosity that they persuaded Judge Michael S. Nachmanoff, who is overseeing the case, to give the lawyers an extra 15 pages to work with.
The lawyers noted that the president’s vitriol toward Mr. Comey dated to May 2017, when he was fired as F.B.I. director while overseeing an investigation into Russia and Mr. Trump’s 2016 presidential campaign. Over and over, they said, Mr. Trump has declared that Mr. Comey should be prosecuted and has referred to him at times as a “leaker,” a “liar,” an “untruthful slime ball,” a “corrupt piece of garbage” and a “weasel” who should “be in jail.”
The lawyers added that Mr. Trump’s animosity toward Mr. Comey ran “so deep” that it even extended to his family. They pointed out that in July the Justice Department fired Mr. Comey’s daughter, Maurene, from her post as a federal prosecutor in Manhattan with “no justification.”
But the “smoking-gun evidence” of the president’s vindictiveness, the lawyers asserted, was a social media message Mr. Trump posted last month. It summarily declared that Mr. Comey was, like some of his other adversaries, “guilty as hell” and ordered Ms. Bondi to prosecute him “NOW!!!”
Just days afterward, Lindsey Halligan, the lawyer Mr. Trump had hastily installed as U.S. attorney in the Eastern District of Virginia, went into grand jury proceedings and came out with an indictment of Mr. Comey.
That indictment accuses him of lying to and obstructing Congress during a hearing before the Senate Judiciary Committee on Sept. 30, 2020.
At the hearing, Senator Ted Cruz, Republican of Texas, asked Mr. Comey whether he had authorized someone at the F.B.I. “to be an anonymous source in news reports.” The indictment says that Mr. Comey misled the committee by saying that he had not done so.
His lawyers, however, attacked the indictment as imprecise and confusing. Senator Cruz’s questions, they pointed out, suggested he was asking about whether Mr. Comey had authorized Andrew McCabe, who once served as his deputy at the F.B.I., to leak information to the news media. But recent court papers filed in the case indicate that prosecutors believe Mr. Comey lied about a different former F.B.I. employee, Daniel C. Richman.
“Because Senator Cruz was asking about Mr. McCabe, not Mr. Richman, Mr. Comey plainly did not knowingly or willfully lie to Congress about his interactions with Mr. Richman or act with the corrupt intent to mislead Congress about those interactions,” the lawyers wrote.
In a separate motion, Mr. Comey’s lawyers said that Ms. Halligan, who had served as both a White House aide and as one of Mr. Trump’s personal defense lawyers, was improperly appointed to her post as U.S. attorney and so the case she filed should be dismissed in its entirety.
The lawyers reminded Judge Nachmanoff that Ms. Halligan, in a highly unorthodox move, presented evidence to the grand jury in the case by herself and was the sole prosecutor to have signed the indictment that was eventually returned.
Complicating matters, the lawyers asserted that the government would not be able to have a different prosecutor seek a new indictment, given that the five-year statute of limitations in Mr. Comey’s case has already expired.
The argument that Ms. Halligan was put in place illegally rested on a complex reading of the Constitution’s appointment clause and congressional statutes governing the ways in which presidential appointments are made.
Mr. Comey’s lawyers noted that Ms. Halligan was not confirmed by the Senate for her role. The lawyers also asserted that her appointment violated the law governing the installation of interim U.S. attorneys.
Typically, the attorney general is permitted to appoint an interim U.S. attorney for 120 days without Senate confirmation. But Mr. Comey’s lawyers argued that Ms. Halligan’s ousted predecessor, Erik S. Siebert, had already served a 120-day stint as interim U.S. attorney.
Ms. Halligan could not be granted her own four months in office as an interim prosecutor after Mr. Siebert’s term, the lawyers said.
“If the attorney general could make back-to-back sequential appointments of interim U.S. attorneys,” they wrote, “the 120-day period would be rendered meaningless, and the attorney general could indefinitely evade the alternate procedures that Congress mandated.”
If Judge Nachmanoff, a Biden appointee, ultimately agrees with the defense, the effect could reach beyond Mr. Comey’s case.
Ms. Halligan was also the only prosecutor to sign the indictment against another one of Mr. Trump’s political opponents, Letitia James, the New York state attorney general, who was charged this month with bank fraud and making false statements.
A ruling finding that Ms. Halligan was put into her post improperly could cause problems in Ms. James’s case as well.
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.
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