Ex-FBI director has a new defense against Trump — the words of Justice Alito

Attorneys for former FBI Director James Comey are hoping that the federal indictment against him will be dismissed before the case even goes to trial. But the indictment remains, and Comey is facing charges that include lying to Congress and obstructing a congressional proceeding.

Comey's legal team is arguing that the indictment is a "vindictive" or "selective" prosecution inspired not by the rule of law, but by President Donald Trump's desire for retribution against a political opponent. Although federal cases are seldom thrown out based on that argument, quite a few legal experts — including conservative attorney and Trump critic George Conway — view the indictment as politically motivated.

According an article by Law & Crime reporter Matt Naham published on October 21, Comey and his attorneys may have a new legal weapon against Lindsey Halligan, the interim U.S. attorney and Trump loyalist prosecuting the case: the words of George W. Bush-appointed U.S. Supreme Court Justice Samuel Alito.

The National Review's Ed Whelan, a former clerk to the late Justice Antonin Scalia, is highlighting what he considers major flaws in the indictment. And Comey, according to Naham, is zeroing on quotes from Comey going back to 1986. At the time, Alito was an attorney for the Ronald Reagan-era U.S. Department of Justice's (DOJ) Office of Legal Counsel (OLC) and was 20 years away from joining the High Court.

In 1986, Alito argued that Congress "can place restraints on a statutory authority to make interim appointments."

According to Naham, "Comey's lawyers have now cited the very same Alito OLC opinion."

"For Comey and his legal team," Naham explains, "Alito's words amount to the executive branch's 'longstanding interpretation dating back to the original enactment of the provision at issue,' meaning Halligan's appointment runs 'directly contrary to the statutory text, structure, history, and purpose' of the law."

A court filing from Comey's lawyers argues that "by purporting to appoint Ms. Halligan," Trump and U.S. Attorney General Pam Bondi "have disregarded that considered judgment and sought to reinstate a regime that Congress expressly repudiated."

Read Matt Naham's full article for Law & Crime at this link.