The Comey Indictment and Selective or Vindictive Prosecution

The indictment of former FBI Director James Comey on charges of making false statements to Congress and obstructing a congressional proceeding touched off furious allegations and widespread concern that President Donald Trump’s Justice Department is pursuing a campaign of personal retribution.

Days before a grand jury indicted Comey, Trump urged Attorney General Pam Bondi to bring criminal charges against Comey and several of the president’s Democratic rivals, writing on Truth Social, “We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!” The president fired off the post a day after the U.S. attorney for the Eastern District of Virginia resigned, reportedly for refusing to bring the case against Comey due to inadequate evidence.

Analysts have observed that these facts offer Comey potentially powerful tools in defending against his prosecution—claims of selective or vindictive prosecution. These claims, which are brought in the form of motions to dismiss, are intended to provide legal remedies to certain types of prosecutorial misconduct.

But it is notoriously difficult for defendants to prevail on selective and vindictive prosecution motions. The executive branch enjoys broad prosecutorial discretion under long-standing interpretations of the Constitution’s Take Care Clause. And under the presumption of regularity, a general principle applied to cases involving executive discretion, courts presume that “in the absence of clear evidence to the contrary,” officials “have properly discharged their official duties.”

Still, courts have recognized certain constitutional constraints on the executive branch’s power to prosecute individuals—specifically, the protections afforded to criminal defendants under the Equal Protection Clause and the Due Process Clause. Selective prosecution motions invoke the former; vindictive prosecution motions invoke the latter. In practice, both kinds of claims are difficult to prove and involve burdensome doctrinal hoops. Whether Comey would succeed on either claim, then, is far from certain.

What Is Vindictive Prosecution?  

Vindictive prosecution arises when a prosecutor uses the charging system to penalize a defendant for having exercised his legal rights. The Supreme Court stated in a 1978 case involving a claim of vindictive prosecution that to punish someone “because he has done what the law plainly allows him to do is a due process violation of the most basic sort.”

To succeed on a vindictive prosecution claim, a defendant must either (a) prove that a prosecutor actually charged the defendant to retaliate against the individual for exercising his legal rights or (b) show facts sufficient to create a “realistic likelihood of vindictiveness,” which creates a presumption the government must then rebut by justifying its charging decision.

In the absence of a presumption of vindictive motive, a defendant must show that charges were brought solely to punish him and could not be justified on other grounds—an exacting standard.

The Supreme Court held in Bordenkircher v. Hayes that a prosecutor did not violate due process when he carried out a threat made during plea negotiations that he would seek to indict the defendant on a more serious charge if the defendant exercised his right to trial. The Court stated there is no element of punishment in the “give-and-take negotiation” of plea bargaining, where the prosecutor’s goal is to persuade a defendant to give up his right to a trial and the defendant is free to accept or reject the prosecutor’s offer.

Even if a defendant does not provide actual evidence of a prosecutor’s retaliatory motive, the Supreme Court in Blackledge v. Perry established that a defendant can make out a vindictive prosecution claim by presenting facts that “pose a realistic likelihood of vindictiveness.” The Supreme Court subsequently framed its decision in Blackledge as creating a “legal presumption of prosecutorial vindictiveness,” which the government can rebut by justifying the reasons for its charging decision.

In the Blackledge case, the Supreme Court held that a presumption of vindictive motive arose when a prosecutor secured a felony indictment against a defendant convicted of a misdemeanor after the defendant received a new trial before a higher court. The Supreme Court reasoned that the opportunities for vindictiveness were significant in situations where a prosecutor with “a considerable stake” in discouraging a defendant from exercising his right to appeal his conviction has the ability to deter such appeals by “upping the ante”—filing more serious charges. The Blackledge court suggested in a footnote that it would not have dismissed the felony charge if the prosecution had shown it was “impossible to proceed on the more serious charge at the outset.”

Notably, the presumption of vindictiveness generally does not apply in a pretrial setting. In United States v. Goodwin, the Supreme Court held that changes in charging decisions during the early stages of criminal proceedings are less likely the result of retribution and more likely the result of developing understandings of the significance of a case. 

Attorneys for Trump argued in 2023 that his indictment in the election interference case should be dismissed for vindictive prosecution, calling the case “a straightforward retaliatory response to” Trump’s constitutional right to criticize the government. They argued specifically that Department of Justice Special Counsel Jack Smith filed federal charges against Trump in the District of Columbia after Trump had exercised his constitutional right to plead not guilty in a criminal case in Florida, which was also brought by the special counsel.

U.S. District Judge Tanya Chutkan denied the motion, ruling that under the totality of the circumstances, Trump had failed to meet the threshold standard that his indictment was “more likely than not attributable to the vindictiveness on the part of the Government.”

Trump, the judge stated, did not “proffer a single evidentiary link between” his indictment and his public criticism of the 2020 election and then-President Joe Biden. Factors Chutkan weighed against Trump’s argument that the government retaliated against him for pleading not guilty in the Florida case were the distinct, independent bases of the prosecutions in Florida and D.C.—the Florida case pertained to Trump’s handling of classified documents, while the case in D.C. pertained to Trump’s efforts to overturn the 2020 election results—and the Supreme Court’s holding in Goodwin that a change in charging decision after a defendant exercises a pretrial procedural right is insufficient to create a presumption of vindictive motive. The holding was not tested on appeal because the Justice Department later dismissed all charges against Trump.

More recently, one federal district court judge found the Trump administration’s actions in another criminal case created a presumption of vindictive prosecution. A U.S. district judge in Tennessee held on Oct. 3 that the circumstances surrounding the indictment of Kilmar Armando Abrego Garcia, an immigrant wrongfully deported by the Trump administration to El Salvador and then brought back to the United States to face fresh criminal charges, created a “realistic likelihood of vindictiveness.” Judge Waverly D. Crenshaw Jr. ordered discovery and an evidentiary hearing in the case.

The judge found that Abrego Garcia’s attorneys offered facts sufficient to establish a presumption of vindictiveness by (a) showing the government had a “significant stake” in retaliating against Abrego Garcia for legally challenging his deportation and (b) showing the prosecution’s actions were unreasonable. Regarding the latter, the judge highlighted the timing of the government’s actions. Abrego Garcia’s indictment on charges of conspiracy and unlawfully transporting noncitizens centered around a Homeland Security investigation into a 2022 traffic stop in which Abrego Garcia was discovered driving individuals who were in the country illegally. Homeland Security’s investigation into Abrego Garcia remained pending for more than two years, closed—without referral for prosecution—three days before the government deported him to El Salvador, and reopened a week after the Supreme Court affirmed a district court order requiring the government to “facilitate” Abrego Garcia’s release from custody in El Salvador.

The judge pointed to administration officials’ own words as strongly suggestive of their vindictive motive. “Most tellingly,” the judge noted, Deputy Attorney General Todd Blanche “strikingly” stated during a television interview that the government reopened its investigation into Abrego Garcia after a judge presiding over Abrego Garcia’s lawsuit challenging his removal ruled against the government—direct evidence connecting the government’s prosecution to Abrego Garcia’s exercise of his legal right. While those comments “could directly establish” prosecutors indicted Abrego Garcia to retaliate against him, the judge stated the defendant had sufficiently met the lower standard of proving a presumption of vindictiveness that entitled him to discovery and a hearing.

Comey will have to prove as a threshold matter that his indictment was “more likely than not attributable to the vindictiveness on the part of the Government.” Comey’s lawyers may argue that Trump’s Truth Social post provides direct evidence that the prosecution against Comey was motivated by animus, and but for such animus, the Department of Justice would not have indicted Comey. Two factors weigh in Comey’s favor: first, Trump has publicly railed against Comey for nearly a decade because the former FBI director opened an investigation into Russia’s interference in the 2016 election and the Trump campaign; and second, the U.S. attorney investigating Comey was forced out of his role because he did not believe there was sufficient evidence to bring charges. Even if those facts established a presumption of vindictive motive, the government must show only that there were legitimate reasons for its conduct.

What Is Selective Prosecution?

Selective prosecution occurs when the government pursues criminal charges against a defendant not in response to the alleged criminal conduct, but for invidious purposes, such as targeting individuals because of their religion, race, or other impermissible factors. The Supreme Court stated in Oyler v. Boles that “the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classifications.”

Rooted in the Equal Protection Clause of the Fifth and Fourteenth Amendments, the doctrine embodies the constitutional principle that the government may not single out one defendant for prosecution while overlooking others who engaged in the same conduct, unless it has a legitimate, non-discriminatory reason for doing so. The Supreme Court first articulated this principle in 1886, holding that a selective prosecution claim arises when the law is “directed so exclusively against a particular class of persons” and applied “with a mind so unequal and oppressive” that the prosecution amounts to “a practical denial of equal protection of law.”

To establish a selective prosecution claim, the Supreme Court in Wayte v. United States articulated a two-part test: A defendant must demonstrate that the prosecutorial discretion (a) caused a discriminatory effect and (b) was driven by a discriminatory purpose.

To prove the prosecution’s discriminatory effect, the defendant must show that the prosecution did not indict a “similarly situated” individual. In the landmark case United States v. Armstrong, the Supreme Court explained that a person is considered similarly situated when they are in comparable circumstances, such as having engaged in the same criminal conduct while subject to the same state or local laws. In Armstrong, the defendants, who were indicted on charges of selling drugs and discharging a firearm, contended that the prosecution was racially selective. The Supreme Court held the defendants failed to satisfy the first prong because they produced no evidence that individuals of a different race who engaged in similar conduct were not prosecuted for the same offenses.

To satisfy the second prong of a selective prosecution claim—discriminatory purpose—a defendant must show that the prosecution was brought “because of” a protected characteristic or activity, and not merely “in spite of” it. In Wayte, which involved a 1980 draft registration law, the claimant argued he was criminally charged for failing to register for the draft because of his protest activities. The Supreme Court found, however, that the government applied draft-registration laws uniformly, prosecuting all reported nonregistrants without imposing any special burden on anti-war protesters. The petitioner thus failed to prove the prosecution was brought because of the defendant’s political activities and the second prong of discriminatory purpose was not satisfied. 

Notably, the Armstrong court underscored the broad discretion afforded to prosecutors and imposed a high evidentiary burden on defendants. Concerned that allowing unfounded or speculative claims could impose heavy burdens on the executive branch and chill legitimate law enforcement efforts, the Court required defendants to present “clear evidence” of both discriminatory effect and purpose before obtaining discovery. The central paradox of this rule is that defendants are required to prove the prosecution’s intent, which is often inaccessible without discovery, before discovery is granted, leading some legal scholars to characterize the rule as a “Catch-22” dilemma. Indeed, selective prosecution motions, in practice, have proven largely illusory; defendants have prevailed in approximately three dozen cases over the past 50 years.

The difficulty prevailing on selective prosecution claims was illustrated recently in United States v. Rundo, a case against members of the white supremacist group Rise Above Movement (RAM) who were indicted for conspiracy to violate the Anti-Riot Act and for substantively violating the Act after violently attacking counterprotesters. The district court dismissed the indictment on selective prosecution grounds; however, on appeal, the U.S. Court of Appeals for the Ninth Circuit reversed.

According to the appellate court, the defendant failed to satisfy either prong of the selective prosecution test. He argued that far-left Antifa members present at the same protests were not prosecuted, but the Court found that they were, in fact, prosecuted for their own offenses. Thus, the defendant failed to show discriminatory effect because others who were similarly situated were also prosecuted.

The Ninth Circuit also rejected the argument that the timing of the arrests, occurring after the death of a left-wing protester, indicated improper motive, thus finding no discriminatory purpose. The Court stated that the federal government “is permitted to set its own ‘enforcement priorities’ and create an overall ‘enforcement plan’ if it has a legitimate reason to do so.”

In a selective prosecution claim, Comey will face significant hurdles proving the discriminatory effect of the Justice Department’s indictment and the government’s discriminatory purpose—“clear evidence” of which is required to access discovery.

Demonstrating discriminatory effect through “similarly situated” individuals will be particularly challenging for Comey, as courts demand they  be nearly identical in relevant circumstances. But Trump’s Truth Social post from Sept. 20 may serve as potential evidence of discriminatory purpose. Trump’s demand that Bondi prosecute Comey, New York Attorney General Letitia James, and Sen. Adam Schiff (D-Calif.), paired with his reference to his own criminal cases, could serve as evidence that the Trump administration is targeting individuals for prosecution because they are the president’s political opponents. The government could counter that Trump’s tweet undermines a discriminatory effect argument, as the inclusion of multiple individuals shows that prosecution is not limited solely to Comey.

Comey might also point to the timing of the indictment, which was secured just before the statute of limitations was set to expire. Yet, as the Ninth Circuit in Rundo emphasized, the government maintains broad discretion in setting its enforcement priorities and timing alone is insufficient to establish bias.

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Trump’s public pressure on his Justice Department to aggressively prosecute his political enemies may provide an avenue for Comey to challenge his indictment on grounds of vindictive and selective prosecution. That the facts surrounding Comey’s prosecution are dissimilar to those of traditional vindictive and selective prosecution claims does not foreclose challenges to his indictment on such grounds. Indeed, Trump’s public comments have shattered norms that the White House refrains from commenting on active Justice Department investigations. Nonetheless, they may be insufficient to prove selective and vindictive prosecution given the high evidentiary burden placed on defendants to overcome courts’ presumption that law enforcement exercises discretion in good faith.