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ashvent.bsky.social
@ashvent.bsky.social
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emptywheel.bsky.social
This is another ¶ that could blow up later.

The stated purpose of this prosecution is to assume due process doesn't exist.
The government’s only other argument against dismissal with prejudice depends on upending one of the most basic and fundamental premises of our criminal justice system: the presumption of innocence. The government asserts (ECF No. 138 at 42) that dismissal with prejudice would “thwart[] the public’s interest in the enforcement of its criminal law” because it would allow Mr. Comey “to escape accountability for lying to and obstructing Congress.” But the assumption that Mr. Comey must be guilty—before any public airing or testing of its evidence—disregards bedrock principles underlying our system of justice. The government’s unfounded assumptions of guilt cannot excuse its egregious constitutional violations.
November 11, 2025 at 12:05 AM
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emptywheel.bsky.social
This passage, arguing that 1A can be a basis for vindictive prosecution, is super important.
6. Finally, the government’s suggestion (ECF No. 138 at 24-25) that a vindictiveprosecution argument cannot be based on the exercise of First Amendment rights lacks support in precedent or principle. A prosecution brought to “punish[]” an individual “for exercising a protected statutory or constitutional right” is “a due process violation ‘of the most basic sort.’” United States v. Goodwin, 457 U.S. 368, 372 (1982). Nothing in that rule suggests that certain constitutional rights are less worthy of protection than others. On the contrary, the Supreme Court has made clear that “government officials” may not “subject[] an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006); see also Vullo, 602 U.S. at 189. Accordingly, a defendant may raise a vindictive prosecution claim when a prosecution was brought to “deter[] [the defendant’s] exercise of his First Amendment rights.” Bragan v. Poindexter, 249 F.3d 476, 483 (6th Cir. 2001). 10
November 10, 2025 at 11:44 PM
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emptywheel.bsky.social
Super low key, Comey lays out the evidence that Trump had no cause to claim that Comey leaked classified info (which claim prosecutors parrotted).
7 No evidence supported the President’s assertion that Mr. Comey leaked classified information, and the President’s indifference to facts further confirms that his accusations reflected animus, not “legitimate prosecutorial motive.” See ECF No. 55 at 4-6 (explaining that “there was no ‘leaking’” of classified information to the press by either Mr. Comey or his counsel” as was confirmed in the August 2019 Department of Justice (DOJ) Inspector General Report). The FBI and DOJ Arctic Haze investigation similarly found no basis for charging Mr. Comey for “false statements or with the substantive offenses under investigation.” Arctic Haze Memo at -065.
November 10, 2025 at 11:40 PM
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emptywheel.bsky.social
Even worse!!!
Cause to parrot Russian disinformation!!!
To begin, the tweet does not reflect the President’s opinion about Mr. Comey, nor does it refer to Mr. Comey’s May 3 testimony as the government misleadingly implies. Instead, the tweet quotes a report based on a conversation on Fox and Friends describing a letter written by former Trump campaign advisor Carter Page stating Page’s view of Mr. Comey’s March 20, 2017 testimony about links between the Trump campaign and the Russia government.5 This tweet can hardly qualify as expressing the President’s legitimate prosecutorial motive—as opposed to relaying hearsay from a television program with no factual basis. In fact, it is the type of unfounded accusation that displays animus rather than a genuine interest in justice. And despite the government’s reliance on it as preceding Mr. Comey’s public statements, the tweet came after the news broke about Mr. Comey’s imminent testimony, i.e., after the President knew that Mr. Comey intended to exercise his First Amendment rights to speak publicly about Mr. Trump’s conduct in office. The President’s preemptive effort to discredit Mr. Comey reflects his animus triggered by Mr. Comey’s anticipated protected speech. 5 The tweet (issued in two parts) says: “So now it is reported that the Democrats who have excoriated Carter Page about Russia, don’t want him to testify. He blows away their....” “...case against him & now wants to clear his name by showing ‘the false or misleading testimony by James Comey, John Brennan...’ Witch Hunt!” Appendix at 1. The tweet was issued thirty minutes after Fox and Friends broke the same story. Id. And Mr. Comey had testified publicly before the House Intelligence Committee on March 20, 2017, to confirm the Trump-campaign and Russian-interference investigation. See Mueller Report, supra n.4 at 52-53.
November 10, 2025 at 11:31 PM
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emptywheel.bsky.social
Oh nooooooooooo!!!

Donny!!!

You've given Comey cause to introduce the Mueller Report!!!!
4 See Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election Vol. II, U.S. Dep’t of Justice, at 27-28, 33-36, 38-41, 57-60 (Mar. 2019) (“Mueller Report”) (recounting Mr. Comey’s mounting concern about the impropriety of the President’s actions), https://perma.cc/W3DH-PLS3. The President’s concerns were well founded: Mr. Comey’s June 8, 2017 testimony provided many details about his troubling interactions with the President. Open Hearing with Former FBI Director James Comey Before the S. Comm. on Intelligence, 115th Cong., 1st. Sess. (June 8, 2017) (“Intel Hearing”), https://perma.cc/UG4P-K2ZJ.
November 10, 2025 at 11:28 PM
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emptywheel.bsky.social
Again, Comey citing Abrego.
Not only does President Trump have the ultimate power to cause a prosecution, but the sequence of events that led to Mr. Comey’s prosecution leaves no doubt that he exercised that power here. After forcing out the incumbent United States Attorney, Erik Siebert, because of his reticence to bring this and other cases against the President’s perceived political enemies, the President posted on social media a message to the Attorney General excoriating her for failing to prosecute those enemies—including Mr. Comey—and directing that “JUSTICE MUST BE SERVED NOW.” See id. at 10-11. In the same message, he praised Ms. Halligan’s legal ability, and, within 48 hours, Ms. Halligan was appointed and four days later went to the grand jury to indict Mr. Comey. See id. at 11-12. One does not need to connect these dots: they form an unmistakable arrow from the President’s bow to Mr. Comey as the target. If “[t]he motivations of the people who place the file on the prosecutor’s desk are highly relevant when considering a motion to dismiss for vindictive prosecution,” Abrego, 2025 WL 3002840, at *1 (emphasis added), the motivations of the President who installed the prosecutor as U.S. Attorney after publicly calling for Mr. Comey’s prosecution are compelling proof of his role in engineering the indictment. The basis for imputation here is clear.1
November 10, 2025 at 11:23 PM
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emptywheel.bsky.social
The former FBI Director, Jim Comey, cites the case of an undocumented immigrant, Kilmar Abrego, in his vindictive prosecution arg.

There's an important commonality between these cases.
indictments. United States v. Dickerson, 975 F.2d 1245, 1251 (7th Cir. 1992) (declining to impute alleged animus of FBI agents and state police officers); see United States v. Spears, 159 F.3d 1081, 1087 (7th Cir. 1998) (declining to impute alleged animus of a state prosecutor and investigators from the Bureau of Alcohol, Tobacco, and Firearms); United States v. Gilbert, 266 F.3d 1180, 1187 (9th Cir. 2001) (declining to impute alleged animus of IRS investigators); United States v. Cooper, 617 F. App’x 249, 251 (4th Cir. 2015) (per curiam) (declining to impute alleged animus of local law enforcement). Those cases are readily distinguishable from this one, where the animus springs from the head of the Executive Branch who has supervisory authority over all federal prosecutors and who exercised that power in this case. people who place the file on the prosecutor’s desk are highly relevant when considering a motion to dismiss for vindictive prosecution.” United States v. Abrego, No. 25-cr-00115, 2025 WL 3002840, at *1 (M.D. Tenn. Oct. 27, 2025) (citing Adams, 870 F.2d at 1146). And the government itself acknowledges that when an individual harboring animus “displace[s]” the prosecutor as “‘the ultimate decision-maker’” in bringing a prosecution, that individual’s animus can be imputed to the prosecutor. See ECF No. 138 at 20 (citing United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995)).
November 10, 2025 at 11:21 PM