Thursday’s indictment of the former F.B.I. director James Comey bore a single, telling signature: that of Lindsey Halligan, installed by President Donald Trump just three days earlier to serve as the United States Attorney for the Eastern District of Virginia. Halligan is an insurance lawyer turned Trump attorney and White House aide; in March, Trump appointed her to remove “improper ideology” from the Smithsonian. She has scant experience in federal courts and none as a prosecutor. Her predecessor in the position, a seasoned prosecutor nominated by Trump, was forced out last Friday, according to numerous news reports, after balking at demands to concoct cases against Comey, in addition to New York’s attorney general, Letitia James, and others.
The next day, Trump addressed a post on his Truth Social platform to Attorney General Pam Bondi: “JUSTICE MUST BE SERVED, NOW!!!” Prosecutors in Halligan’s office reportedly submitted a memorandum to Halligan outlining the weakness of the Comey case. None of those concerns mattered, apparently. Trump finally secured the indictment he had long been calling for. At this point, a prudent President would have stayed silent. Not this one. He posted, “JUSTICE IN AMERICA! One of the worst human beings this Country has ever been exposed to is James Comey, the former Corrupt Head of the FBI. . . . He has been so bad for our Country, for so long, and is now at the beginning of being held responsible for his crimes against our Nation.” The Department of Justice’s own news release contained the usual boilerplate about an indictment being merely an allegation and the presumption of innocence that all defendants enjoy—legal niceties that struck a particularly disingenuous note in light of Trump’s triumphalism. The President went on to suggest that more of his enemies may face charges: “It’s not a list, but I think there will be others,” he said on Friday morning, en route to watch the Ryder Cup.
Grand-jury proceedings are well known to favor the prosecutor—a state-court judge famously remarked that “any good prosecutor can get a grand jury to indict a ham sandwich”—but there is not much meat in the Comey indictment. One meagre count alleges false statements to Congress; the other alleges obstruction of a congressional proceeding arising from the same testimony. (Notably, the grand jurors refused to approve a third count, which reportedly pertained to another allegedly false statement.) Both charges stem from Comey’s testimony before the Senate Judiciary Committee on September 30, 2020—specifically, the indictment cites an exchange Comey had with the Republican senator Ted Cruz about whether Comey had authorized leaks to the media about the F.B.I.’s 2016 investigations involving Trump and Hillary Clinton. Cruz referenced a 2017 hearing, during which the Republican senator Chuck Grassley asked Comey whether he had “ever been an anonymous source” or “authorized someone else at the F.B.I. to be an anonymous source” in news reports about matters concerning the Trump or Clinton investigations. When Comey denied both, Cruz pressed him about a contrary account provided by his former deputy director, Andrew McCabe.
The indictment alleges that “that statement was false,” because, as Comey “then and there knew, he in fact had authorized PERSON 3 to serve as an anonymous source in news reports regarding an F.B.I. investigation concerning PERSON 1.” This was presumably Hillary Clinton, because the leak at issue related to the F.B.I.’s investigation into Clinton’s e-mails and the Clinton Foundation.
That’s it? That’s the crime? It’s hard to imagine that any responsible or ethical prosecutor would bring this case. In order for a false statement to be criminal, it must be made “knowingly and willfully.” Obstruction of Congress requires the defendant to have acted “corruptly.” The evidence that Comey did either appears sorely lacking. According to a 2018 report by the Justice Department’s inspector general, McCabe authorized F.B.I. officials to speak with the reporter Devlin Barrett, who was with the Wall Street Journal at the time, about the F.B.I. investigation of the Clinton Foundation in October, 2016. But Comey did not join in that authorization, the inspector general found. Indeed, according to the inspector general, the evidence suggested that, after the article was published, McCabe misled Comey about McCabe’s role in the leak. While the two men remembered their conversation differently, the inspector general found that “the overwhelming weight of that evidence supported Comey’s version of the conversation.” (McCabe disputed the inspector general’s conclusions.)
In other words, there’s no evidence that Comey pre-approved the leak of information; the evidence that he blessed such action after the fact is contested at best. Who is Halligan’s chief witness going to be? McCabe, a man whom Trump repeatedly attacked for being biased against him? Among other inconvenient facts, the Justice Department unsuccessfully set out during Trump’s first term to prosecute McCabe over his alleged misstatements to investigators. As Benjamin Wittes and Anna Bower wrote for Lawfare before the Comey indictment was issued, “It would be quite rich, having sought and failed to charge one party to a memory dispute to turn around and try to charge the other.” (It’s unlikely but conceivable that the indictment references a different episode: Comey’s use of the Columbia Law School professor Daniel Richman to funnel information to the New York Times about Trump’s demands, in 2017, that Comey pledge loyalty to him. Prosecutors reportedly interviewed Richman recently, but Richman’s role did not come up during Comey’s Senate testimony.)
