As US President Donald Trump continues to pressure the Justice Department to pursue criminal charges against his political opponents, legal experts say that former FBI Director James Comey could have a legitimate chance at getting his indictment thrown out, thanks to Trump’s own public statements.

Comey was indicted on Thursday on two felony counts for allegedly lying to Congress in 2020 about whether he authorized leaks to the press during his tenure. But experts suggest that Trump’s repeated and public targeting of Comey could bolster a rarely successful legal strategy: claiming vindictive prosecution.

“It’s a better case for Comey, because the president won’t shut up,” said retired federal Judge John Jones. “And that’s admissible, so he’s got a fighting chance, I think, on vindictive prosecution.”

Trump publicly pressures DOJ to prosecute rivals

In recent days, Trump has intensified calls for the Justice Department to move against Comey, New York Attorney General Letitia James, and California Senator Adam Schiff, all Democrats and longtime critics of the president. Senior DOJ officials have also pushed for charges against former National Security Advisor John Bolton.

Speaking to reporters on Friday, Trump said he expects further prosecutions of his political opponents, “It’s not a list, but I think there will be others. I mean, they’re corrupt. These were corrupt, radical left Democrats. … No, there will be others.”

These statements have raised serious concerns among legal analysts, who say the president’s approach could backfire in court.

Legal experts: Comey has stronger case than most

Efforts to dismiss criminal cases on the basis of selective or vindictive prosecution face high legal barriers. Both Trump and Hunter Biden previously tried, and failed, to use the argument.

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However, experts say Comey’s situation is different due to the president’s persistent public pressure.

“He’s made it so obvious that he’s targeting them, regardless of the evidence, that I do think a judge would be far more receptive to probably both concepts — selective prosecution and vindictive,” said former federal Judge Shira Scheindlin.

'Selective prosecution and vindictive'

Selective prosecution

Selective prosecution arguments often imply that a defendant is being unfairly singled out when others in similar situations are not charged. But Scheindlin noted the risks of that approach for someone like Comey, saying, “That’s like admitting that yeah, you did it, but how come the other ten guys who did it aren’t being charged?”

The Justice Department has broad discretion in choosing whether to file charges. To win on a selective prosecution claim, a defendant must show they were treated differently than similarly situated individuals and that the prosecution was motivated by discriminatory intent, such as race, religion, or political beliefs.

“It is a very hard motion to win,” said Randall Eliason, a former federal prosecutor in Washington, DC. “You’ve really got to prove bad motives on the part of the prosecution.”

Vindictive prosecution

A vindictive prosecution claim, on the other hand, asserts that charges were brought as retaliation for the defendant exercising a legal right, such as refusing a plea deal or criticizing the government. Legal experts say Comey could build such a case based on Trump’s long-standing public antagonism.

“You see the animus,” said Judge Jones. “What else do you need? It’s a great test case to kind of examine the contours of a true vindictive prosecution claim — you know, ‘I got indicted because the president of the United States doesn’t like me and wanted me to be indicted.’”

Internal DOJ turmoil raises additional legal red flags

The legal strategy may also be supported by recent upheaval within the Justice Department. Erik Siebert, the US attorney previously overseeing Comey’s case in the Eastern District of Virginia, was reportedly pushed out after resisting pressure to bring charges. He was replaced by interim US attorney Lindsey Halligan, a known Trump loyalist.

“They’re picking their guy and then trying to find something they can charge him with,” Eliason said. “That sets off all kinds of red flags.”

This pattern has already shown up in other politically charged cases. In Tennessee, attorneys for Kilmar Abrego Garcia, a man deported to El Salvador and later returned to the US, argued that his charges stem from political retaliation. They cited similar DOJ personnel shifts as evidence.

Comey’s attorney, Patrick Fitzgerald, said in a statement that his client denies the charges and looks forward to “vindicating him in the courtroom.”

Comey is scheduled to be arraigned on October 9.