Former FBI Director James Comey has been indicted by the Justice Department for lying to Congress and obstruction of justice. The original prosecutor declined to seek the indictment and was summarily fired and replaced with another prosecutor who quickly sought an indictment.
The FQ is: Can Comey call Erik Seibert, the fired prosecutor that declined to seek charges and have him testify in court as to why he didn’t pursue the case?
There are 2 types of witnesses that you can call at a trial: fact witnesses and expert witnesses.
Fact witnesses testify to what they observed, whereas experts give their opinions, and are meant to help the jury understand the facts that are presented.
One area where an expert cannot be called is in the law: the judge is the person who tells the jury what the law is, and a defendant can’t bring in an expert to testify to their interpretation of the law.
So; if Comey wishes to call the fired prosecutor, it would have to be so he can testify to things he saw or experienced (and would be limited by the rules against hearsay).
I’m not entirely sure what he’d testify to. If he saw evidence that led him to doubt that Comey didn’t commit the crime, the better move by the defense is to just present that evidence to the jury.
IANAL, but it seems to me that Seibert’s testimony wouldn’t be relevant to the charges in the indictment.
It would, however, be relevant to the almost certainly coming motion to dismiss due to selective prosecution. That motion will also contain Trump’s various posts and statements urging various prosecutors to charge Comey prior to the Statute of Limitations running out.
It shouldn’t be too hard to show that very few people are charged with a single count of lying to Congress, much less only after the POTUS dismisses one prosecutor, replaces them with another, and then publicly pressures that prosecutor to bring an indictment.
ETA2: Comment removed on the Obstruction charge - not germane to the OP and more political than should be in FQ.
Like evidence of a politically motivated prosecution?
He’s either guilty or he’s not. What motivates the prosecution is probably not relevant.
Although it may surprise you, there is no specific prohibition against politically motivated prosecutions, and I’m not sure how a generic legal standard could be upheld in such cases. Prosecutors have broad discretion as to how to pursue directives to prosecute cases, and preventing the appearance of being motivated by political directives has been the reason that the Department of Justice maintained significant independence (by action, not law) from the White House. It is basically up to the court to reject a politically motivated prosecution without evidential basis as a waste of the court’s time.
Well, unless it incites prosecutorial misconduct such as presenting knowingly false evidence or perjured testimony. But such evidence would likely be presented in a motion for summary dismissal or else at a civil trial for malicious prosecution.
Unless there is something more than what is presented in the indictment, it doesn’t appear that there is any real case here. It is essentially a question of whether James Comey made false testimony to Congress, and unless there is someone testifying to having been given or overheard a direct order to anonymously divulge details in the investigation of Hillary Clinton’s private email server, any evidence is going to be hearsay. It is a pretty obviously nonsensical allegation which is why the original prosecutor resigned.
Stranger
That could be something the original prosecutor could testify about. “Did you ever see the evidence that was just presented?” “No.”
The previous prosecutor or Inspector General may be able to testify about selective prosecution or politically motivated prosection, as mentioned above, in a motion to dismiss, but not in the trial in front of the jury. It would depend what pressure was put on them - did they submit a report and get told, “no, prosecute anyway” or were they simply dismissed without discussion when they said “no grounds for prosecution”. And more logically, if they concluded there were no grounds, based on parts of the evidence available, the defense would logically present that evidence at trial. But that same evidence along with prosecutor statements would be additional proof at the motion to dismiss.
Essentially “They had this evidence which they used to conclude there was no case and told their boss(?) who said to charge anyway.”
I assume (IANAL) that motions are typically written submissions and oral arguments, not hearings with witnesses? So they’d have to depose those persons beforehand for the statements?
ETA: pundits point out that the grand jury only hears what the prosecutor at the time wants them to hear, so presumably selectively ommitting the grand jury hearing countering evidence is a time-honoured DA tradition.
I don’t agree that this is a basis to move to dismiss the case.
The motivations of the prosecutor are a political issue, not a legal one. It doesn’t provide a basis to dismiss a criminal indictment. Technically, every indictment is politically motivated, and prosecutors are, sort of by definition, biased against the accused. That’s why we have an adversarial system.
That’s the question, isn’t it? is the decision of the prosecutor supposed to be their own independent choice? If a power above interferes, then it’s no longer blind justice and the validity of the case is questionable.
that’s not how our system works.
if a person is charged based on flimsy evidence, the remedy is a trial where you show a jury that the case is bogus. If a person is charged based on ill gotten evidence, the remedy is to suppress that evidence.
But there is no legal mechanism for stopping a legally valid prosecution just because of the motivations of the prosecution.
What Trump is doing may be considered unseemly or Inappropriate, but pressing the justice department to enforce certain laws against certain people is not illegal.
Unfortunately, the entire legal history of this country provides an uncountably high number of examples in which this ideal falls short. That will not change in any foreseeable future.
I’m not entirely sure that’s correct:
In part (summary):
Facing a federal criminal charge is daunting. The stakes are high, the prosecution is well-resourced, and the penalties can be life-altering. However, in certain rare and exceptional cases, a defendant can challenge the very legitimacy of the prosecution itself by asserting a defense known as selective prosecution. This legal doctrine arises from the Fifth Amendment’s guarantee of equal protection and due process. When properly raised and supported, a successful claim of selective prosecution can lead to the dismissal of a federal criminal case before it ever reaches trial.
I don’t know what that would prove.
The issue of ‘selective prosecution’ is a salient one because essentially every Trump nominee has openly lied before Congress in ways that are demonstrable by their performance post-confirmation but actually making that case is itself fraught with political implications. It would be frankly better to just ignore the political bias entirely and focus on what I assume is a complete lack of any evidence or credible testimony that James Comey lied in testimony to Congress, and if the judge doesn’t summarily dismiss the case for being without evidential basis—i.e. the prosecution has to demonstrate both mens rea and actus reus, or in plain English, intent and implementation of a criminal act—then a jury will almost certainly find for acquittal, because people don’t really like to be dragged into serving on a jury only to find that the prosecution has no case to present beyond innuendo.
Stranger
A selective prosecution defense is almost certainly not going to work.
The U.S. Supreme Court case recognizing it applied to racial discrimination. Even your own cite refers to “protected classes” of people.
what protected class is James Comey going to claim affiliation with, which is being uniquely singled out with this charge?
Here’s a pdf with a somewhat more general look at federal selective prosecution that uses the Armstrong case cited above as a modern standard.
5. 4 Making Out a Claim of Selective Prosecution
A. Obtaining Discovery Relevant to a Selective Prosecution Claim
Importance of discovery to selective prosecution claims. Discovery is important in a selective prosecution claim, as the decisions made by prosecutors generally are not publicly available. Therefore, evidence of discriminatory practices is difficult to uncover without discovery. See Wayte, 470 U.S. 598, 624 (Marshall J., dissenting) (“[M]ost of the relevant proof in selective prosecution cases will normally be in the Government’s hands.”). Where the State fails to comply with a discovery order pertaining to a selective prosecution claim, the court may impose sanctions, including potentially dismissal. See People v. Ochoa, 212 Cal. Rptr. 4 (Cal. Ct. App. 1985) (where the State refused to comply with a discovery order related to defendants’ claim of selective prosecution based on race and the discovery materials would have allowed defendants to compare the population of offenders to the population of defendants prosecuted, the trial court properly dismissed the charges against the defendants).Discovery standard announced in United States v. Armstrong. In interpreting federal rules, the United States Supreme Court held that, because a selective prosecution claim is not a defense to the merits of a criminal charge but instead is an independent claim of prosecutorial misconduct, discovery related to selective prosecution allegations will be granted only if defendants first demonstrate “some evidence” of discriminatory effect and discriminatory intent. See United States v. Armstrong, 517 U.S. 456, 463 (1996); see also United States v. Bass, 536 U.S. 862, 863 (2002) (per curiam). The Armstrong court stated that the “showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.” 517 U.S. 456, 464. This creates what some have described as a Catch 22: selective prosecution claimants “cannot even get discovery without evidence, and one can rarely get evidence which will satisfy a court without discovery.” Gabriel J. Chin, Race, the War on Drugs, and the Collateral Consequences of Criminal Conviction, 6 J. GENDER RACE &JUST. 253, 267 (2002); Kristen E. Kruse, Comment, Proving Discriminatory Intent in Selective Prosecution Challenges - An Alternative Approach to United States v. Armstrong, 58 SMU L. REV. 1523, 1534 (2005). While the discovery standard applicable to selective prosecution claims in federal court is rigorous, it is “less stringent” than that required to prove a selective prosecution claim on the merits. United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001). As one court observed, “defendants need not establish a prima facie case of selective prosecution to obtain discovery on these issues.” Id.
In some federal criminal cases decided after Armstrong, courts have found that defendants presented the requisite “some evidence” of discriminatory effect and intent to satisfy the discovery standard. See United States v. Jones, 159 F.3d 969 (6th Cir. 1998) (police officers’ custom-made t-shirts celebrating arrest of two Black defendants—but not their White co-defendant—along with postcard sent by police officer to Black defendant awaiting trial featuring Black woman with bananas on her head constituted prima facie evidence of discriminatory intent; referral of Black defendant for federal prosecution of crack cocaine charges combined with failure to refer for federal prosecution eight non-Black defendants who were arrested and prosecuted for crack cocaine charges constituted “some evidence” of discriminatory effect); United States v. Tuitt, 68 F. Supp. 2d 4 (D. Mass. 1999) (where Black defendant was federally prosecuted for crack cocaine charges, evidence that no Whites were prosecuted for crack cocaine charges in four federal courts during a time period in which some Whites were prosecuted for crack cocaine charges in state courts in the same area constituted sufficient evidence of discriminatory effect and discriminatory intent for purpose of obtaining discovery).
This is more vindictive prosecution, which is different than selective prosecution. *They are usually brought together but they are separate and unique.
Vindictive prosecution is when the prosecution’s actions are not based on the facts of the case but rather on a desire to punish or intimidate the defendant. It doesn’t matter if Comey actually did it or not, the reason for the prosecution was only to punish/intimidate.
Here, they first found a person to go after for retribution - Comey. Then they went looking for something to charge him with. Anything. Trump’s “truths” demanding they continue to go after Comey days before the SOL, even after another prosecutor looked at the facts and declined due to lack of evidence, is extremely on point to prove vindictive prosecution.
I’d be surprised if this was not the reason for dismissal.
Late: Of course the Judge might find a less political way out, but vindictive prosecution is on point here. Everybody knows that is what’s happening and it’s all in plain sight.
Difficult? Yes. Rare? Sure. Possible? It appears so. It isn’t just about protected classes:
In part:
Mere selectivity in prosecution creates no constitutional problem. Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). To invoke the defense successfully one must prove that the selection was deliberately based on an unjustifiable standard, such as race, religion, or other arbitrary classification. Oyler v. Boles, supra, 368 U.S. at 456, 82 S. Ct. 501. See Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497 (1944); Rhinehart v. Rhay, 440 F.2d 718 (9th Cir. 1971); People v. Utica Daw’s Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128 (1962). Steele is entitled to an acquittal if his evidence proved that the authorities purposefully discriminated against those who chose to exercise their First Amendment rights.
It’s in the context of them maybe making up evidence. Since we know they don’t actually have enough to convict him, either they expect to lose, or they’re going to lie about something.
But if someone who is intimately familiar with all of the evidence that existed prior to his firing calls bullshit on that, it’s a pretty strong argument to show they’re lying. That, or make them claim something ridiculous, like, after five years of investigation, they suddenly found all the best evidence literally in the last week before the statute of limitations ran out.
The other question I wonder about is the evidence. I don’t want to get into the details of the charges, but my understanding is that to prosecute perjury - which I presume “lying to congress” is an equivalent charge - the prosecution needs to produce two separate independent sources of evidence that contradict the testimony.
So if the charge is solely based on two conflicting versions of conversations between two people, that should not be enough, even if both are provided under oath. He-said-he-said?
Plus, IIRC the current charges relate to 2020 testimony on a second committee hearing, because testimony from the original hearing (and the contradictory testimony) is beyond the statute of limitations?