On Monday, James Comey and his legal team unleashed a series of motions aimed at permanently dismissing the charges against him. Labeling the indictment as “fatally flawed,” they are pushing for it to be dismissed with prejudice, ensuring the charges cannot be refilled.

The former FBI director’s legal strategy draws heavily from a precedent set by U.S. District Judge Aileen Cannon. Cannon, known for her controversial decision to dismiss the Mar-a-Lago classified documents case against Donald Trump, based her ruling on a solo concurrence by Justice Clarence Thomas concerning the legality of the special counsel’s appointment.

Comey’s motions argue for the dismissal of charges related to false statements and obstruction, suggesting they stem from selective or vindictive prosecution. The motions prominently reference public statements made by Donald Trump urging U.S. Attorney General Pam Bondi to prosecute Comey. Furthermore, they challenge the legitimacy of Lindsey Halligan’s appointment as interim U.S. Attorney. Halligan, once a defense attorney for Trump in the Mar-a-Lago case, has since transitioned into a novice prosecutor role.

In their argument, Comey’s legal team cites a 1986 opinion authored by Samuel Alito during his tenure in the DOJ’s Office of Legal Counsel. This opinion supports their claim that the appointment of an interim U.S. attorney was improperly executed. Additionally, they invoke Justice Thomas’ solo concurrence in the Trump v. United States case, a ruling that favored Trump and was subsequently used by Judge Cannon to halt the prosecution of Trump by special counsel Jack Smith in July 2024.

That concurrence was memorably cited just two weeks later by Cannon, a Trump appointee, to doom then-special counsel Smith’s prosecution of then-candidate Trump in mid-July 2024.

Evidently, Comey’s attorneys — including Patrick Fitzgerald, Jessica Carmichael, former Mueller probe prosecutor Michael Dreeben, and former federal prosecutor Rebekah Donaleski — were paying attention.

“The Attorney General’s appointment of Ms. Halligan thus violates not only Section 546,” a U.S. attorney vacancy statute, “but also the Appointments Clause,” the filing said, directly citing Thomas’ concurrence in Trump v. U.S. and Trump’s Mar-a-Lago case in the Southern District of Florida.

“Similarly, in United States v. Trump, the court applied these principles when dismissing an indictment on Appointments Clause grounds because of a defect in the appointment of the prosecutor who secured the charges,” Comey’s filing said, referring to Jack Smith’s loss. “The court concluded that ‘[b]ecause Special Counsel Smith’s exercise of prosecutorial power has not been authorized by law,’ there was ‘no way forward aside from dismissal of the Superseding Indictment.’”

Halligan likewise lacked authority to “take the challenged action in the first place,” Comey’s filing continued.

In his concurrence, Thomas wrote that Smith’s appointment was “invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it ‘by Law.’”

Here, Comey asserts that the indictment is a “nullity” that “must be dismissed” with prejudice because Halligan’s allegedly unlawful appointment made it void from the get-go. To do anything other than dismiss the case for the rest of time would be to “reward” the Trump administration for its “unlawful installation of Ms. Halligan as interim U.S. Attorney and consequent manipulation of the statute of limitations.”

“Ms. Halligan’s unlawful appointment renders her purported official actions void ab initio,” the filing reads, using the Latin phrase for “from the beginning.”

“The indictment against Mr. Comey that she alone secured and signed is thus a nullity and should be dismissed,” the filing concluded. “That dismissal should be with prejudice because any other remedy would not sufficiently address and deter the Executive Branch’s willfully unlawful conduct in this case.”