Former FBI Director James Comey testifies in 2017 in front of the Senate Intelligence Committee in Washington, DC.

Former FBI Director James Comey is asking a federal court in Virginia to dismiss the indictment brought against him by a former Trump aide who was recently installed to lead a prosecutor's office in the state.

Comey's defense team argued in an Oct. 20 motion that the evidence shows the case against him amounts to a "vindictive prosecution," and that's a reason for throwing out the case completely.

"President Trump ordered the Department of Justice (DOJ) to prosecute Mr. Comey because of personal spite and because Mr. Comey has frequently criticized the President for his conduct in office," the defense team alleged.

In a separate motion also filed Oct. 20, the defense team argued the case should also be thrown out because the prosecutor who sought the charges was allegedly unlawfully appointed.

Comey was indicted by a federal grand jury in Alexandria, Virginia, Sept. 25 on charges that he lied to Congress and obstructed a congressional proceeding during testimony he gave before a Senate committee in 2020. The charges carry a maximum of five years in prison, but federal sentences typically fall below top penalties.

The charge that Comey lied to Congress is tied an accusation that he told senators he didn't authorize someone at the FBI to anonymously leak information about an investigation to the media, despite allegedly knowing that was false. At the Oct. 8 hearing where Comey pleaded not guilty, his lawyer, former Justice Department senior official Patrick Fitzgerald, said he and Comey still didn't know who the alleged authorized leaker is.

Meanwhile, Lindsey Halligan was installed around Sept. 20 to head the U.S. Attorney's Office for the Eastern District of Virginia after the man who headed that office until September, Erik Siebert, reportedly expressed skepticism about the potential case against Comey as well as a separate potential case against New York Attorney General Letitia James, another target of President Donald Trump.

Halligan secured an indictment Oct. 9 against James, who sued Trump civilly in 2022, alleging financial fraud.

Halligan previously served as a White House aide under Trump and worked for him as his personal lawyer.

Near the time Halligan was installed to lead the Virginia office, Trump posted on social media that Comey was "guilty as hell" and delay was not an option. Sept. 30 marked a five-year deadline to bring charges against Comey. A grand jury evaluated the charges five days before that deadline.

Why Comey says case is 'vindictive'

Fitzgerald signaled at the Oct. 8 court hearing that the defense planned a series of arguments challenging the charges, including that they amount to a vindictive prosecution.

The defense team made good on that promise in one of its Oct. 20 motions, accusing the Justice Department of seeking charges against the former FBI director at the behest of the president.

The defense team noted Trump's post labeling Comey "guilty as hell" around the time Halligan was appointed and sought Comey's indictment.

The lawyers also described Comey's history of urging Americans not to vote for Trump, and Trump's history of publicly attacking Comey.

In August of 2020, Comey authored a Washington Post op-ed stating that “if Trump-style justice becomes our tradition, nobody is safe," and telling Americans to vote for Joe Biden. The following month, Trump reposted a message from Ohio Republican Congressman Jim Jordan saying Comey and others "should be in jail."

On MSNBC in May 2024, Comey argued that a second Trump adminstration would have "serious" implications for the Justice Department and the FBI, alleging that "Trump is coming for those institutions." Days later, Trump posted on Truth Social that Comey had perpetrated "Horrors" and was "spreading LIES!"

"Mr. Comey has established that his prosecution 'was motivated by actual vindictiveness,' and the indictment must be dismissed," the defense team argued.

In the same motion, the team argued that the indictment against Comey should also be dismissed because it is a "selective" case that is targeting Comey because he exercised his free speech rights. Comey said other former Trump administration officials have faced more credible allegations of misleading Congress than he does, yet only he was charged.

Comey challenges prosecutor's appointment

Comey's defense team also argued in its Oct. 20 filings that Halligan's appointment wasn't lawful, and so the indictment should be dismissed. Halligan was the only federal prosecutor to sign the indictment.

The team pointed to a law that authorizes the attorney general to appoint a U.S. attorney to fill a vacancy and serve up to 120 days, unless the U.S. Senate approves a presidential nominee before then. At 120 days, a court is authorized to appoint a U.S. attorney to serve until the vacancy is filled.

A court previously authorized Siebert to continue serving as head of the U.S. Attorney's Office for the Eastern District of Virginia, after Attorney General Pam Bondi appointed him and the 120-day term for that appointment expired. Bondi later appointed Halligan, around the time Siebert left his post and Trump addressed Bondi on social media, calling for Comey to be charged and saying Halligan is "a really good lawyer" who likes Bondi "a lot."

"When Mr. Siebert resigned on September 19, 2025, the district court again had the exclusive authority to appoint an interim U.S. Attorney," Comey's team argued. "But instead of awaiting the district court’s selection, the Attorney General purported to appoint Ms. Halligan."

This story has been updated with additional information.

This article originally appeared on USA TODAY: Will James Comey have to go to trial? Ex-FBI director asks court to toss case

Reporting by Aysha Bagchi, USA TODAY / USA TODAY

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