The Comey Indictment -- What Is "Vindictive" Prosecution And "Selective" Prosecution In The 4th Circuit Where Comey Was Indicted?
The Comey defense team said in Court this week that their first challenges will be to dismiss on the basis of the above, as well as to challenge the lawfulness of US Attorney Halligan's Appointment
Arguments based on “vindictive” prosecution and “selective” prosecution are made for the purpose of seeking to have a validly returned federal criminal indictment dismissed. They do not claim that the indictment is defective for some legal reason. They do not involve a court inquiry into the facts supporting the charge — they are not a mechanism to surreptitiously urge dismissal based on alleged factual weakness in the charges.
They assert extra-judicial grounds — grounds unrelated to the factual allegations or statutes at issue themselves — that the Department of Justice should not be allowed to go forward with the case based on information that pre-existed the charges which make the prosecution unfair or not “in the interests of justice.”
There are 12 different federal Circuit Courts of Appeal. Each establishes procedural and substantive case law that is binding on all the lower district courts within that Circuit. The procedural and substantive case law so defined can vary from Circuit to Circuit without the Supreme Court being called upon to create uniformity. When different Circuits come to decisions that are inconsistent such that persons living in the different Circuits are subject to different legal applications, the Supreme Court steps in to resolve the conflict — decide which Circuit is right and which Circuit is wrong.
The Supreme Court has spoken authoritatively on what the defenses of “vindictive” and “selective” prosecution require. They are related, but distinct from one another. But the Supreme Court does not, as a general matter, resolve different approaches that might be adopted in the Circuits on how to address certain issues when there is a range of choices, all of which are acceptable in some fashion.
