The very botched Comey indictment
The case so far is so sloppy, it might never get to a jury.
By Barbara McQuade
It’s amateur hour in the Eastern District of Virginia.
Though no one ever wants to be charged with a crime, James Comey must consider himself fortunate that the indictment in his case reflects the lack of experience of the prosecutor who filed it. The former FBI director has said he will assert his right to a trial because he is innocent, but this case might never even get to a jury.
Rule 29 of the Rules of Criminal Procedure provides that if the evidence is insufficient to sustain a conviction after the government rests its case at trial, the judge “must enter a judgment of acquittal.” This indictment seems destined for that fate.
Thursday’s indictment contains two counts, one for false statements and another for obstruction of a congressional proceeding. The second count appears to rely on the same evidence as the first, meaning that conviction is likely an all-or-nothing proposition.
False statements are one of the more difficult crimes to prove because the elements require not only that a person make a false statement but the person knows it is false at the time and that the statement is material to the matter under investigation. Because most of us tend to speak without precision, proving that a person knowingly lied about an important matter is harder than people might think. It is not enough that a person was deliberately misleading, that he omitted an important detail, or that the gist of the statement was false. Prosecutors must articulate the precise lie and prove what was in the mind of the speaker at the time he said it.
The Comey indictment bears all kinds of red flags—the resignation under duress of U.S. Attorney Erik S. Seibert, his replacement with Lindsey Halligan, a former insurance lawyer and White House adviser to President Donald Trump, and the reported absence of any career prosecutor to present the case to the grand jury or sign the indictment, leaving it to Halligan to do so all by herself. Halligan has never served as a prosecutor, and it shows.
The indictment appears to have been a rush job, even though the alleged offense occurred almost five years ago. That’s because the statute of limitations expires on Sept. 30. A few days before the charges were filed, Trump had emphasized the urgency of his demands for criminal charges against Comey and other political enemies, posting on social media, “We can’t delay any longer . . . JUSTICE MUST BE SERVED, NOW!!!” According to Kevin Flynn, a former federal prosecutor in Washington, D.C., the indictment “looks like a slapdash rush to the courthouse with one goal in mind: to achieve the president’s aims in charging a perceived political foe with a felony.”
A review of the indictment itself indicates that Flynn’s assessment is on the money. First, the language of the indictment is remarkably spare for a false statements case. Ordinarily, the charging document includes not only the false statement but also the context around it, quoting verbatim the questions and answers on which the charges are based. Instead, this indictment alleges only that Comey falsely said he had not “authorized someone else at the FBI to be an anonymous source in news reports.” It goes on to state that Comey did, in fact, authorize “Person 3” to do so regarding an FBI investigation concerning “Person 1,” claiming that Comey’s denial was a lie. The indictment follows Justice Department convention to omit from an indictment the names of individuals who are not charged with a crime. Based on the context, it appears that Person 1 is former Secretary of State Hillary Clinton and Person 3 is former FBI Deputy Director Andrew McCabe.
Comey could demand a bill of particulars, a document that provides reasonable notice to a defendant about the manner and means of the offense so he can adequately defend himself. But he might prefer to watch the prosecution founder in the courtroom at trial. A variance between the indictment and the evidence—that is, charging one crime but proving another—can result in an acquittal.
Second, the charging theory is muddled because the indictment bootstraps testimony Comey gave in 2017, necessitated by the expiring five-year statute of limitations. As a result, it is unclear exactly what lie is alleged. The quoted language appears to come from a question asked by Sen. Ted Cruz (R-Tex.) at a Senate committee hearing on Sept. 30, 2020, the date of the alleged offense. But Cruz was asking Comey about testimony he had given three years earlier at a different hearing in response to a question from Sen. Chuck Grassley (R-Iowa). At that time, the committee was investigating the FBI’s probe into connections between Russia and Trump’s 2016 presidential campaign and its inquiry into Clinton’s use of a private email server. It was Grassley who had used the words quoted in the indictment, but his full question provided more context. Grassley had asked Comey if he had “ever authorized someone else at the F.B.I. to be an anonymous source in news reports about the Trump investigation or the Clinton investigation.” Those words were omitted from Thursday’s indictment, perhaps because they are problematic for the prosecution. In 2020, when Cruz asked Comey about that exchange, he botched the wording. Instead of accurately quoting Grassley, Cruz said “Clinton administration,” not “Clinton investigation.” The only Clinton administration in American history is the presidency of Bill Clinton, and it was not the subject of any FBI investigation under Comey. Therefore, Comey’s denial in response to this question had nothing to do with “Person 1.”
Third, even if the case can survive the administration/investigation discrepancy, the leak that appears to be the subject of the indictment is one that McCabe later admitted making to the Wall Street Journal in August 2016, wholly unrelated to either subject about which Grassley inquired. The topic of the McCabe leak was not the investigation into Hillary Clinton’s private email server but a probe of the Clinton Foundation. (According to a 2018 report by the DOJ inspector general, McCabe directed an aide to tell reporter Devlin Barrett that, contrary to published reports, the investigation into the Clinton Foundation remained ongoing, a leak that could only have harmed Hillary Clinton’s presidential campaign.) Because Grassley had asked about different topics, evidence of the McCabe leak would not support a conviction.
Though some commentators have suggested that “Person 3” referenced in the indictment is not McCabe, but Daniel Richman, a friend of Comey’s and a one-time special employee at the FBI, the indictment itself rebuts that theory. Comey admitted to asking Richman to share the contents of memos he had written about his interactions with Trump before the president fired Comey in 2017. But those memos pertained to Trump’s efforts to derail the Russia investigation, not to any investigation into “Person 1,” Hillary Clinton. Any one of these flaws might cause the judge to dismiss the case without sending it to a jury.
Halligan seems to be the kind of prosecutor you get when you place loyalty above competence. It might be that Trump doesn’t care whether Comey is convicted as long as he suffers the humiliation of an indictment. And it will send a message to other would-be critics to keep their mouths shut. Even if the case is dismissed before going to the jury, the president will likely claim the judge is biased.
But the when the case falls apart, as it seems destined to do, the entire exercise should be seen for what it is: an abuse of power to punish political enemies.
Thanks for that clear crisp explanation Barbara!
Comey and McCabe should have both been fired by President Obama for their interference (and help to the Felon) in the 2016 election. That said, the indictment of Comey is the Felon's continued efforts in making the United States an authoritarian theocracy (Putin's Russia).