Motions to dismiss indictments based on selective prosecution are exceedingly difficult for defendants, but Comey has more to work with than most.

Finally, defense counsel Pat Fitzgerald also informed Judge Nachmanoff that Comey would be filing a motion to dismiss the indictment on the grounds of selective and vindictive prosecution. This is also a very tough claim for a defendant to prevail on — successful motions are exceedingly rare. But James Comey has a lot more to work with than most defendants.

To win such a motion, the defendant has to establish two things: (1) the prosecution was motivated by a discriminatory intent that targeted the defendant based on some impermissible factor, and (2) similarly situated individuals, as to whom that impermissible factor does not apply, have not been charged. Historically, the usual impermissible factor is racism or some similar characteristic. But the selective prosecution claim does often arise in the political context: an opponent of the incumbent administration claims to have been singled out for prosecution due to that opposition.

Often, it’s not difficult for a defendant to show that the incumbent administration had animus against him; and in a politically charged case, it’s often logical to conclude that the animus stemmed from political rivalry, which — like racial, ethnic, or religious bias — is an impermissible basis to charge someone with a crime. Still, that showing can be a dead end if there is evidence that the defendant actually committed a crime. In our system, the executive branch has discretion regarding who does and doesn’t get charged, and courts are not permitted to substitute their judgment for the prosecutor’s. If there is real evidence that the defendant committed a crime, courts won’t be very moved by claims that the government doesn’t like the defendant for other reasons.

On the other hand, if the evidence of guilt appears scant, the defendant’s showing of an impermissible motive can take on more significance.

That said, where selective prosecution claims tend to founder is over the other factor: whether similarly situated people haven’t been prosecuted in situations in which the impermissible factor is not present. Usually, there just isn’t evidence of that. If, for example, the government routinely prosecutes various people for the crime charged against the defendant, it becomes nigh impossible for a defendant to prove that he’s been singled out.

Here, by contrast, Comey is going to be able to establish that he was indicted (a) only after the president publicly chastised the attorney general for the failure, to that point, to charge him; (b) that Trump called for Comey’s prosecution in the context of similarly calling for prosecutions against other political opponents, and while unabashedly insisting that they deserved it because Trump feels these political opponents unfairly charged him; and (c) after publicly celebrating Comey’s indictment, Trump (as discussed in the first of these four posts) became insistent that Comey be perp-walked because Trump ally Roger Stone had been perp-walked — lending credence to the conclusion that the case against Comey is a vindictive effort to put him through a punitive process.

Moreover, Trump has pardoned many political allies who were charged with or convicted of making false statements and/or obstruction: Michael Flynn, Paul Manafort, Roger Stone, George Papadopoulos, and Alex van der Zwann were all pardoned by Trump after being charged with or convicted of making false statements to investigators and/or obstruction. (To be clear, I am not opining about whether these individuals were guilty of mendacious and otherwise obstructive conduct. I had plenty to say about that — generally sympathetic to the defendants — when those cases were ongoing. The topic we’re discussing now is selective prosecution; on that point, what matters is whether others were charged with the same crime, not whether they were guilty.)

While not convicted of obstructing Congress, Steve Bannon was convicted of criminal contempt of Congress for failing to provide testimony and other information — and he was pardoned by Trump. And of course, Trump granted pardons to over 1,600 Capitol riot defendants, many of whom were charged with obstructing Congress.

Comey is uniquely situated to argue that (1) Trump unmistakably singled him out for prosecution on the impermissible ground that Comey is a political enemy whom Trump blames for smearing him in the Russiagate probe; and (2) Trump’s political allies, who were charged with crimes similar to those Comey faces, got discriminatorily favorable treatment even, if the evidence against them was substantial, while Comey has gotten discriminatorily unfavorable treatment despite dubious evidence of guilt.