Comey Pretrial Motions Highlight Patent Failure of the Indictment to State a Crime

The case should be dismissed.

A s anticipated, former FBI Director James Comey asked the Virginia federal court on Monday to dismiss the Trump Justice Department’s indictment against him on the grounds that (a) he is being subjected to an unconstitutionally selective, vindictive prosecution, (b) by an interim U.S. attorney who is statutorily unqualified to serve in that position. (See our James Lynch’s report.) While the motions to dismiss appear strong, I believe that is secondary to what they convey about the disarray of the prosecution and incoherence of the charges.

I’ll address this in a series of posts. Let’s start with the big picture.

Notably, Comey’s defense lawyers report (without apparent contradiction from the government) that on October 20 — i.e., nearly a month after the indictment, all 17 lines of it, was filed — the prosecution finally notified Comey that the mysterious “Person 1” and “Person 3” referred to in the two-count indictment are Hillary Clinton and Columbia law professor Daniel Richman. The guesswork on this topic has been intense because the charges that Comey gave false testimony to Congress, and thus obstructed its oversight investigation, do not explain with clarity what Comey allegedly did to violate the law. (See Rule 7(c)(1), Fed. R. Crim. P.: “The indictment . . . must be a plain, concise, and definite statement of the essential facts constituting the offense charged”; see also the Sixth Amendment, mandating that the accuse “be informed of the nature and cause of the accusation.”)

Rushed Indictment

To recap, the indictment alleges that Comey gave false testimony at a Senate Judiciary Committee hearing on September 30, 2020. The timing, it should be noted, explains why President Trump abruptly fired Erik Siebert, the interim U.S. attorney for the Eastern District of Virginia (EDVa) he had appointed, who had declined to prosecute Comey for lack of evidence.

With the five-year statute of limitations (SOL) on any charges arising out of the Senate testimony set to lapse on September 30, 2025, the president first publicly berated Attorney General Pamela Bondi for the Justice Department’s foot-dragging in charging Comey and two other Trump political enemies — New York Attorney General Letitia James, who was subsequently indicted on dubious bank fraud charges, and Senator Adam Schiff (D., Calif.), whose indictment on similar bank fraud charges is reportedly imminent (despite the reluctance of federal prosecutors in Maryland who believe there is no case . . . and who have mollified Trump, for now, by indicting former National Security Adviser John Bolton, another of his nemeses). Then, as adumbrated in the post aimed at Bondi, Trump supplanted Siebert with Lindsey Halligan, a loyalist: a 36-year-old former Florida insurance lawyer and White House staffer, who had never prosecuted a criminal case prior to the Comey grand jury proceeding last month.

Less than a week later, and five days before the SOL’s expiration, Halligan convinced a bare majority of grand jurors to indict the two counts (although the grand jury refused to approve a third charge — a “no true bill,” which is exceedingly rare in federal practice due to the one-sidedness of grand jury proceedings).

Botched Questioning Shreds Hillary Clinton Designation as Person 1

To use the clinical legal term, the Comey indictment is a joke. That is largely because it is based on questioning that Senator Ted Cruz botched, and that had nothing to do with what the Trump DOJ claims Comey was somehow willfully lying about.

Which brings us to Person 1, Hillary Clinton. Ostensibly, former Secretary of State Clinton was denominated as Person 1 in deference to the DOJ’s policy against naming uncharged persons in publicly filed indictments. In reality, we now know that Halligan was trying to paper over a fatal flaw in her case.

In the 2020 testimony, Senator Cruz implied that Comey had lied in testimony to the committee three years earlier, when he asserted that he had never “authorized someone else at the FBI to be an anonymous source” in news reports. As the hearing transcript elucidates (at approximately the 1:52 mark), Cruz was very specifically alleging that Comey had authorized his then-deputy, Andrew McCabe, to leak information to the Wall Street Journal about an FBI investigation of the Clinton Foundation.

As I’ve explained, however, Cruz had his facts wrong: McCabe has admitted that he personally authorized the WSJ leak (which, as deputy director, he had authority to do without the director’s pre-approval); McCabe didn’t discuss the matter with Comey until after the WSJ report was published. That is why, even though Cruz was expressly and emphatically asking about McCabe, Halligan is desperately trying to imply that the testimony was about Richman, who — like Comey — had nothing to do with the WSJ report. (We’ll come to that momentarily.)

Nevertheless, the court should not even need to reach that problem in order to find the indictment infirm. That’s because Halligan used the “Person 1” formulation in an amateurish attempt to hide that Cruz also misstated what the leak was about.

In the indictment, Halligan alleges Comey falsely stated that he had not authorized an FBI official to leak details “regarding an FBI investigation of Person 1.” My italics there refer to the FBI’s Clinton Foundation probe, sensitive details about which McCabe admits he leaked to the WSJ. Obviously, that’s what Cruz meant to ask about.

In posing the question, though, the senator misspoke. He asked whether Comey denied authorizing an FBI official to leak details of “the Clinton administration.” The Clinton administration, of course, was presided over by President Bill Clinton, not Person 1 (his wife Hillary), and ended both before the Clinton Foundation was established in 2001 and 13 years before Comey became FBI director.

Manifestly, Comey cannot have authorized a leak about an FBI investigation of the Clinton administration that (during his tenure as FBI) did not exist. Halligan cannot camouflage this gaping hole in her case by using the denomination “Person 1” to divert attention from Cruz’s failure to ask about the Clinton Foundation. Even if we stipulate that Clinton Foundation is what Cruz meant to say, it’s not what he did say.

Understand: To prevail on charges that Comey made a false statement and obstructed Congress, the government must prove beyond a reasonable doubt that he understood precisely what was being asked and willfully lied in responding. The government can’t conceivably prove that. Although there is no reason to believe Comey lied about the McCabe leak to the WSJ regarding the Clinton Foundation (the Justice Department inspector general concluded otherwise in a scathing report about McCabe), the court should never reach that question because Comey was not even asked about Hillary Clinton (Person 1) and the Clinton family’s foundation. He was asked about the Clinton administration.

Hence, Comey has a defense that his testimony was literally true and far clearer than the government’s incoherent version of events — i.e., he never authorized anyone at the FBI to leak information about an investigation of the Clinton administration.

Questioning About McCabe Forecloses Prosecution Based on Richman as Person 3

That brings us to Person 3, supposedly Richman.

Although Cruz garbled his questions, it is certain that they had nothing to do with Richman. (As I’ve previously explained, Richman — like Comey and Comey’s attorney, Patrick Fitzgerald — is an old friend of mine from when we all started as young federal prosecutors in Manhattan around 40 years ago. I have not spoken with any of them about Comey’s case and the underlying facts.) Cruz was talking about the Clinton Foundation, and he narrowly directed Comey’s attention to McCabe, not Richman, in identifying a subordinate whom Comey had supposedly authorized to be an anonymous media source.

Richman was retained by Comey as a “special government employee” (SGE) of the FBI from June 2015 into February 2017. Comey shared with him summaries he’d made of his early 2017 conversations with President Trump. There was abundant evidence that Comey tried not to include classified information in the memos, but the FBI retroactively determined that two portions reflected information classified at the confidential level (the lowest classification category).

After Trump fired Comey in May 2017, which was three months after Richman ended his SGE relationship with the FBI, Richman acceded to Comey’s request that he share with the New York Times the substance of Comey’s report on his February 2017 meeting with Trump about the investigation of retired General Michael Flynn (who, fleetingly, was Trump’s first national security adviser). The Justice Department in the first Trump administration prudently determined that Comey should not be prosecuted for retaining or disseminating classified information (proving criminal intent would have been nigh impossible), and the DOJ inspector general sharply rebuked Comey in a report. Between this incident and Comey’s presiding over the FBI’s Russiagate investigation, Trump remains ballistic that Comey — until now — has never been charged with a crime. This has spotlighted Richman’s role in the May 2017 leak to the Times.

Nevertheless, none of that changes the reality that the incident vaguely outlined in the indictment relates to McCabe, not Richman. Halligan knows she can’t make McCabe “Person 3” — the FBI official Comey allegedly authorized to be an anonymous media source — because McCabe, Comey, and the DOJ inspector general all agree the person who authorized the WSJ leak that Cruz was asking about was McCabe, not Comey.

In a Hail Mary pass, Halligan is claiming Person 3 is Richman, on the theory that, while asking about McCabe, Cruz got Comey to reaffirm 2017 testimony that he had never authorized any FBI subordinate to leak.

Put aside that (a) when Richman did leak on Comey’s behalf in May 2017, neither of them was an FBI official and Comey had no authority to direct Richman to do anything; (b) Richman has said publicly that Comey never authorized him to leak information about Hillary Clinton (Person 1); and (c) as we’ve seen above, Hillary Clinton’s identification as Person 1 in the indictment is nonsensical because Senator Cruz referred to the Clinton administration, not the Clinton Foundation. The only thing that matters in a false statements and obstruction case is what the respondent reasonably understood he was being asked. In reviewing the Cruz/Comey exchange at the hearing, there is no way Comey could have believed he was being asked about anyone other than McCabe.

Comey was under oath. His obligation was to listen to the question and respond directly to what he was asked. He was explicitly, incontestably asked about McCabe; if he had given an answer about Richman, that would have been unresponsive at best and potentially perjurious. Before Comey could be credibly accused of lying about Richman, he had to be on notice that he was being asked about Richman. He cannot be proved beyond a reasonable doubt to have lied about someone as to whom he had no notice he was then being interrogated.

Quite apart from the questions of whether Comey’s prosecution is unconstitutionally selective and vindictive, and of Halligan’s statutory qualification to serve as interim U.S. attorney, the indictment wholly fails to state a crime. With the government’s concession that Person 1 is Clinton and Person 2 is Richman, neither of whom makes sense in the designated role given the substance of Cruz’s questions, the indictment should be dismissed because (a) it fails to state a crime and (b) Comey’s testimony was true.

It is expected that Comey will make specific motions to dismiss along these lines within the next two weeks. But what is in his current motions is sufficient to show that the indictment is infirm.