Defending its latest attempt to prosecute James Comey, this time for posting a photo of seashells on Instagram, the Department of Justice invokes the “presumption of regularity.” That’s the principle under which courts defer to the government unless there’s a good reason not to.

The former FBI director, whom President Donald Trump fired in his first term, says the days of deference are over in Trump’s second term, one in which the DOJ has targeted the president’s critics and political opponents — Comey chief among them.

The deference dispute has arisen across all manner of cases over the past couple of years, with judges across the country wondering whether this administration deserves the benefit of the doubt.

In Comey’s case, it surfaces in litigation over whether his charges, for allegedly threatening the president with that social media post, should be dismissed pretrial.

The seashells in question were arranged to form the pattern “86 47.” The government says Comey intended to convey a threat to harm the president in posting the photo he took at a North Carolina beach. While everyone agrees that Trump is the 47th president, the disagreement is over the meaning of “86” — whether, as the DOJ contends, it means “to kill,” or whether, as Comey contends, it is simply a slang term from the restaurant industry that means to “get rid of” or “throw out.”

Prosecutors could have a hard time proving the case beyond a reasonable doubt to a jury. But if any of Comey’s several pretrial motions to dismiss succeed, the case will never get that far.

He was previously indicted in Virginia for allegedly lying to and obstructing Congress in connection with his 2020 Senate testimony. He pleaded not guilty to that indictment, which a judge dismissed pretrial on the grounds that the Trump-backed lawyer who brought the case, Lindsey Halligan, was unlawfully installed by the administration. The DOJ is appealing that dismissal.

One of his arguments for dismissing the latest charges is that they are unconstitutionally vindictive and selective. Although it might seem like common sense when the president has publicly spoken out against the defendant at length, these are difficult arguments for defendants to win. But this administration’s overt retaliation has provided grounds for at least being able to make such motions.

A notable successful example came in the case of Kilmar Abrego Garcia, whom the administration illegally deported and then only returned him to the United States when it had an indictment waiting for him. A federal judge in Tennessee dismissed his indictment on vindictive prosecution grounds. The DOJ is appealing that decision.

In his motion to dismiss, Comey cited Abrego’s case as an example of the government’s vindictive behavior, including that of Attorney General Todd Blanche in particular, who was called out by the judge in Abrego’s case as having led a “tainted” investigation.

Comey says the same is true of his North Carolina indictment. “To effectuate the President’s wishes, Mr. Blanche sought to do what [former Attorney General] Ms. [Pam] Bondi could not: successfully prosecute Mr. Comey,” Comey’s lawyers wrote. They cited the collapse of his Virginia case and Trump’s firing of Bondi reportedly in part for her failure to successfully prosecute his critics and political opponents.

“Other cases confirm the DOJ’s use of coercive legal process to achieve impermissible ends, establishing that the presumption of regularity is unwarranted in current circumstances,” Comey’s lawyers wrote. They pointed to various courts having blocked DOJ subpoenas targeting Trump’s political enemies, such as Minnesota Gov. (and former vice presidential candidate) Tim Walz; the 2020 election workers of Fulton County, Georgia; and former Federal Reserve Chair Jerome Powell. They noted those courts quashed the subpoenas as brought by a DOJ “now unquestionably under the current President’s control” and designed to “harass political opponents or to coerce them into taking official action.”

Federal prosecutors responded to Comey’s dismissal motions this week, including his vindictive and selective prosecution claim. One of their arguments is that he can’t “overcome the presumption of regularity afforded to the charging decision” in his case. As in its appeal of the Abrego dismissal, the DOJ is trying to narrow the scope of that charging decision to the local federal prosecutor formally in charge of the case, while seeking to cordon off Blanche and Trump from infecting the prosecution. In Abrego’s case, the judge found it would have been naive to limit the analysis in that way.

The DOJ also invokes the presumption of regularity in its effort to prevent disclosure of the grand jury proceedings that led to Comey’s latest indictment. His lawyers concede that such proceedings are generally entitled to that presumption, but they argue that “the irregularities surrounding the return of the indictment in this case overcome that presumption and warrant disclosure of the grand jury record.”

They noted that this isn’t even the first indictment of Comey’s to raise this issue, because a judge reviewing the record in his Virginia case — before it was dismissed — found the government’s actions raised “genuine issues of misconduct” that were “inextricably linked to the government’s grand jury presentation.” Comey’s lawyers said irregularities in the North Carolina case likewise warrant disclosure.

Comey’s case therefore provides the latest opportunity for the courts to either closely scrutinize the administration’s actions or treat them like business as usual.

The North Carolina judge will review the arguments from the prosecution and the defense on these issues and others before determining how to proceed.

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