Luigi Mangione’s defense is asking a federal judge to throw out the possibility of the death penalty before Mangione is indicted on federal charges in the assassination of Brian Thompson, the CEO of UnitedHealthcare who was gunned down from behind outside a New York City hotel last year.

In a fiery back-and-forth through court filings, prosecutors said it was too early for the defense to move to have the death penalty taken off the table because Mangione has not been indicted or arraigned, and they have not formally filed notice that they intend to seek capital punishment.

Unofficially, however, Attorney General Pam Bondi said April 1 she was directing prosecutors to seek the death penalty, and the defense took issue with the announcement itself and how she made it in an Instagram post. They argued that the language suggested Mangione has already been convicted of the charges — he has not — and that such language prejudiced the grand jury process, which could still be underway with the deadline to file an indictment Friday.

On Wednesday, Mangione’s attorneys, Karen Friedman Agnifilo and Avi Moskowitz, shot back, accusing the government of violating their client’s right to due process by allegedly violating rules about commenting on a pending case outside the courtroom.

Luigi Mangione is escorted from an NYPD helicopter in New York City Dec. 19, 2024. (Rashid Umar Abbasi for Fox News Digital)

Central to the issue is the death penalty announcement, which appeared on the Justice Department’s Instagram in a quote attributed to Bondi, which they said was prejudicial to the jury pool.

Mangione’s defense said waiting for an indictment would mean waiting too long.

“Once a prejudiced grand jury returns a death-eligible indictment, it is simply too late,” they argued. 

But the defense faces an uphill battle with those arguments of selective prosecution, according to Neama Rahmani, a Los Angeles-based former federal prosecutor who has been following the case.

UnitedHealthcare CEO Brian Thompson, left, was shot and killed in midtown Manhattan on his way to a shareholder conference. Surveillance cameras captured the ambush. (Businesswire; NYPD Crimestoppers)

“It didn’t work for Donald Trump. It didn’t work for Hunter Biden and it won’t work for Mangione,” he told Fox News Digital. “It’s a very difficult and high legal burden to meet.”

He predicted that the Justice Department under Bondi, a Trump nominee, may begin to more aggressively seek ways to impose the death penalty for crimes committed in blue states that don’t have capital punishment on the books. 

“Bigger picture, this may reflect a shift in DOJ policy where they will seek the death penalty in blue states that have a moratorium on or have an outright ban on capital punishment,” he said.

Trump has previously said he wants to expand the federal death penalty to cover more crimes and end a moratorium on federal executions put in place by former President Joe Biden.

Luigi Mangione appears in Manhattan Supreme Court in New York City Dec. 23, 2024.  (Curtis Means for DailyMail/Pool)

Thompson, 50, was a father of two visiting New York City for a publicly announced shareholder conference. Mangione is accused of stalking him, then ambushing him outside the conference. He faces numerous charges, including terror-related murder, and allegedly wrote at length about his disgust with the health insurance industry.

Mangione faces charges in New York, Pennsylvania and federal court. He has pleaded not guilty.