By C. Ryan Barber and Sadie Gurman
It is typically a losing argument for a criminal defendant to claim that a prosecution was motivated by political retaliation. But that legal long-shot has emerged as a popular defense strategy after President Trump explicitly urged the Justice Department to bring charges against his perceived foes.
The first big test of the tactic comes Wednesday, when a federal judge in Virginia will consider James Comey's claim that his indictment on charges of lying to Congress was motivated by Trump's hostility toward the former FBI director.
"The defense argues that, if there was ever a case with a whole series of boxes you'd check off for selective or vindictive prosecution, this would be it," said Paul Grimm, a retired federal judge. "You have a perfect storm of facts."
Trump has long viewed Comey, a Republican who was appointed to the FBI by President Barack Obama, as a nemesis and urged prosecutors to find ways to exact payback. Comey says the two-count indictment charging him with lying in a 2020 congressional hearing -- an indictment that Trump on social media proclaimed as "JUSTICE IN AMERICA" -- came as a result.
Comey's lawyers in court documents pointed to Trump unleashing a "storm of personal attacks against Mr. Comey, laced with invective." They also noted that the president forced out a federal prosecutor who didn't support charges and installed Lindsey Halligan, a former personal lawyer for Trump, as the new U.S. attorney in charge.
In response, the Justice Department has called Halligan a "duly appointed and unbiased prosecutor" and argued that Comey has fallen well short of the standard required for dismissing a case as vindictive.
The legal bar for proving a defendant was targeted for selective or vindictive prosecution is high. For one, all prosecutions are to some extent selective, since prosecutors have limited time and resources and want to pick only the cases most likely to succeed, said Rory Little, a former federal prosecutor and professor at UC Law San Francisco.
Already, the Justice Department has faced a series of other setbacks in its case. On Monday, a federal magistrate judge pointed to a series of apparent errors Halligan made in obtaining a grand jury indictment charging Comey, writing in a 24-page order that "government misconduct" might warrant dismissing the case.
Another federal judge is set to decide whether Halligan was lawfully appointed to her role as U.S. attorney in September, after Trump administration officials sidestepped the customary confirmation process. If the judge agrees with defense attorneys, the case against Comey, as well as one Halligan brought against New York Attorney General Letitia James, could be invalidated.
Vindictive prosecution defenses are so rarely successful that legal experts struggle to recall the last time such an argument prevailed. Still, defense lawyers have raised that argument in a number of cases brought during the second Trump administration, with mixed initial results.
A federal judge in Tennessee last month ruled that there was a "realistic likelihood" that the Justice Department acted vindictively in the case of Kilmar Abrego Garcia, the Maryland man who was mistakenly deported to El Salvador and returned to the U.S. to face human-smuggling charges. U.S. Judge Waverly Crenshaw said Abrego Garcia's prosecution "may stem from retaliation" by the Trump administration because he successfully sued over his unlawful deportation.
A judge this month refused to dismiss an assault case against Rep. LaMonica McIver after a confrontation with federal law-enforcement officials outside an immigration detention center in New Jersey. McIver had argued that the Trump administration targeted her because she is a Democrat, but the judge said she had failed to show that her prosecution was vindictive.
James, whom Halligan charged with mortgage fraud two weeks after indicting Comey, is also arguing she is being prosecuted because she is a prominent Trump critic. James has challenged numerous Trump policies in court and in 2022 filed a lawsuit accusing him of committing civil fraud by inflating his net worth on financial statements.
A judge is set to hear arguments on that motion on Dec. 5.
Write to C. Ryan Barber at ryan.barber@wsj.com and Sadie Gurman at sadie.gurman@wsj.com
(END) Dow Jones Newswires
November 19, 2025 05:30 ET (10:30 GMT)
Copyright (c) 2025 Dow Jones & Company, Inc.
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