Key Takeaways

• Former FBI chief James Comey faces indictment for lying to Congress in 2020.
• His lawyers argue the prosecution is selective and vindictive.
• Selective prosecution claims need proof he was singled out unfairly.
• Vindictive prosecution hinges on Trump’s harsh public statements.
• The judge may order discovery or dismiss charges with prejudice.

Comey’s lawyers moved to throw out charges against him. They say the prosecution is unfair and driven by revenge. They filed their motion on October 20, 2025. They want the judge to bar any refiling of charges. They point to President Trump’s social media demands that Comey face charges. Thus, they call this a vindictive prosecution. Moreover, they claim it’s also selective since other officials faced no similar treatment.

How Selective Prosecution Works

Selective prosecution means the government picks on one person while ignoring others. To win this claim, Comey must clear two hurdles. First, he must show that others who made false statements to Congress faced no charges. Second, he must prove the government acted because he criticized Trump. However, past cases weaken this claim. For example, Michael Cohen and Caspar Weinberger faced similar charges. Therefore, clearing both hurdles seems unlikely.

Why Proving Selective Prosecution Is Tough

Prosecutors enjoy broad discretion when filing charges. Courts assume those choices are lawful. Consequently, the burden on Comey is very heavy. He must provide clear evidence of unequal treatment. He also needs proof of discrimination due to his speech. Meanwhile, the Justice Department will point to other prosecutions for false statements. Hence, overcoming the presumption of fairness will be tough. Still, Comey’s team explores every angle to make their case.

Arguments for Vindictive Prosecution

Comey’s lawyers lead with claims of vindictive prosecution. They highlight Trump’s repeated calls on social media. He labeled Comey a “Dirty Cop” and a “total SLIMEBALL!” Moreover, he openly demanded charges against him. Thus, Comey’s team argues that the prosecution sprang from animus, not facts. They also note that only Trump’s former personal lawyer, Lindsey Halligan, sought the indictment. This suggests bias rather than a routine decision by prosecutors.

What’s Next for the Comey Prosecution?

The judge has several options. First, she can dismiss the case with prejudice if she finds bias or unfair targeting. That result would end any refiled charges. Second, she can deny the motion and let the case move forward. Third, she might order discovery. In that scenario, Comey would get access to internal DOJ records. He’d also get a hearing on his motion. Given Trump’s statements, many expect the judge to order discovery first.

Possible Appeals and Beyond

No matter the judge’s decision, an appeal seems certain. If she rejects the motion, Comey will appeal the ruling. If she grants it, the Justice Department will fight back. Either side will seek a federal appeals court review. Moreover, the losing party will likely ask the Supreme Court to weigh in. However, justices accept only a small fraction of appeals. Thus, predicting Supreme Court action is impossible. Still, this case could shape future rules on selective and vindictive prosecutions.

The Road Ahead

The battle over the Comey prosecution will stretch on. Discovery could reveal internal emails, memos, and notes. These records might show why prosecutors acted. They could also shed light on Trump’s role in the decision. Meanwhile, public attention will stay high. After all, few cases mix politics with criminal law so directly. Moreover, both sides have strong incentives to win early. A quick dismissal ends a major fight. A trial would drag on, keeping this story in the headlines.

FAQs

What is selective prosecution?

Selective prosecution happens when the government singles out one person for unfair treatment while ignoring others who did the same thing. To prove it, the accused must show unequal treatment and discriminatory motive.

What must Comey prove to win his motion?

Comey must prove that the Justice Department acted with bias. He needs clear evidence that other officials faced no charges for similar conduct. He also must show animus based on his speech against Trump.

What defines vindictive prosecution?

Vindictive prosecution occurs when prosecutors pursue charges out of revenge or hostility. Here, Comey’s team points to Trump’s social media attacks as proof of animus toward him.

What happens if the judge orders discovery?

Discovery would give Comey access to internal DOJ records. He could use emails, memos, and notes to support his claims. The judge would then hold a hearing on the dismissal motion.

What are the chances this ends up at the Supreme Court?

Both sides plan to appeal any ruling. However, the Supreme Court accepts only a few cases. While the issue is important, predicting its path to the high court is impossible.