James Comey was fired as FBI director on May 9, 2017, after his handling of the Clinton email probe. (Reuters)
Former U.S. Attorney Barb McQuade of Michigan told Fox News Digital one possibility is that Comey could argue the prosecution was selective.
"To prevail on a selective prosecution claim, the defendant must show not only that the prosecution was motivated by an improper purpose, but also that other similarly situated individuals were treated differently," McQuade said.
She said it would be "remarkably easy to demonstrate the first factor," pointing to Trump’s extraordinary comments on social media openly saying he wanted Comey charged out of vengeance. Comey, one of Trump’s top political nemeses, led the FBI when it opened a controversial investigation into Trump over his 2016 campaign’s alleged collusion with Russia.
McQuade said, however, that the second factor would be difficult to prove — that others have not been prosecuted for false statements to Congress — since that "essentially requires a defendant to prove a negative."
COMEY DENIES CHARGES, DECLARES 'I AM NOT AFRAID'
A split image of James Comey and Donald Trump. (Alex Kraus/Bloomberg via Getty Images; Andrew Harnik/Getty Images)
"Because the prosecution must show that Comey knowingly and willfully made a false statement, that messy record may be a fatal flaw," McQuade said.
Former U.S. Attorney John Fishwick of the Western District of Virginia told Fox News Digital that if the court permits Comey to access any records related to the DOJ’s "internal deliberations" about the case, those details could undermine the prosecution and bolster a defense that the case was tainted by political motivations.
"The biggest potential fallout for DOJ will be if the judge permits the Comey legal team to get under the hood of the internal deliberations of DOJ to prosecute or not prosecute Comey," Fishwick told Fox News Digital. "The Comey team wants to argue this prosecution is just about politics and revenge, but they will need as much evidence as possible to buttress this claim as DOJ will counter the grand jury indicted Comey, not DOJ."
Trump’s appointment of Halligan as U.S. attorney was a last-minute move, as the five-year statute of limitations on Comey’s testimony expired on Sept. 30. Trump ousted her predecessor, Erik Siebert, a 15-year veteran of the Virginia office, and brought in Halligan, a willing participant in Trump’s mission to take down his political rivals.
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While Trump has suggested other indictments are coming down the pike, critics have zeroed in on Comey's case, calling it weak enough that Trump also risks impeachment over it and that Halligan and any other prosecutors who decide to join the case risk career penalties. No DOJ prosecutors have joined Halligan on the case at this stage.
Former DOJ official Harry Litman, host of "Talking Feds" and vocal Trump critic, said "some accountability" would come if Democrats take the House next year, advocating they impeach Trump for what he says is an abuse of power and obstruction of justice.
"If we can just get through the midterms and give the House of Representatives the power to subpoena all of these jokers on Capitol Hill, grill them and then impeach Trump again … all of the evidence of the crime that Donald Trump just committed will be laid out for public inspection," Litman said.
He also cited a report that career prosecutors advised Halligan against charging Comey, suggesting she faces the "possibility of serious professional sanctions" because of it.
Ashley Oliver is a reporter for Fox News Digital and FOX Business, covering the Justice Department and legal affairs. Email story tips to ashley.oliver@fox.com.
https://www.foxnews.com/politics/how-james-comeys-indictment-could-go-south-doj