The Trump DOJ’s Vindictive Reply to Comey’s Claim of Vindictive Prosecution

This week produced one of the most bizarre submissions to a court that I’ve seen.

T he point of lawfare, we’ve now seen all too often, is to punish and humiliate the target, not vindicate the rule of law. That’s not to say that President Trump and his minions wouldn’t love to convict Jim Comey of a crime. But if that’s not an available option — which appears to be the case in the prosecution the president has goaded his Justice Department into bringing against the former FBI director — the punitive application of the legal process and the stigma of criminal charges will do.

This week thus produced one of the most bizarre submissions to a court that I’ve seen from the Justice Department (which is saying something after more than 40 years of working in and then closely following the DOJ’s doings).

The Litigation over Comey’s Claim of Vindictive Prosecution
Comey, who became an ardent Trump detractor after the president fired him in May 2017, has moved on several grounds to dismiss the indictment filed against him by Trump’s handpicked prosecutor, Lindsey Halligan. We’ve extensively discussed these motions, including the one seeking dismissal based on the legal infirmities attendant to Halligan’s appointment as interim U.S. attorney for the Eastern District of Virginia (which was in the news again this week).

Comey’s first round of dismissal motions also included a claim that the indictment is vindictive and selective in violation of due process principles. On Monday, the government filed its 48-page response, using the occasion to provide a factual recitation that portrayed Comey as a Janus-faced villain who labored behind the scenes to orchestrate favorable media coverage while lying to Congress about it.

This may seem appropriate on the surface. After all, Comey is charged in two counts with making false statements to the Senate and thereby obstructing its oversight investigation. He has, moreover, alternatively moved to dismiss the indictment because it fails to state a crime — i.e., it does not put him on notice, with clarity and specificity, of what the government claims he did to mislead and impede Congress. In this context of clarifying the charges, a factual recitation by the prosecutors would be welcome — assuming, of course, that such a recitation would truly be factual.

But again, the government submission we are discussing purports to address Comey’s claim of vindictive and selective prosecution, not the failure to state a crime. Vindictive prosecution is an issue on which the law leans heavily in the government’s favor; one might suppose, then, that the prosecutors would stick with the law, not begin by rolling out “facts” that are off the point.

Alas, the factual recitation is pretextual. Ostensibly, it undertakes to show that Trump had a rationale, unrelated to his loathing of Comey, for demanding that Attorney General Pam Bondi charge the former FBI director — namely, that Comey is a lawbreaker who merited being charged. The real reason for including the recitation, though, is to embarrass Comey by rehashing the withering critiques by Michael Horowitz, the Justice Department’s then–inspector general, of now-notorious episodes in Comey’s FBI stewardship.

Even this would be fair game if the rebukes intersected with the charges in the indictment, but they don’t.

Did Comey merit the IG’s rebukes? Yes. Horowitz covered (a) Comey’s insubordinate handling of the Clinton emails investigation (which inadvertently crippled Hillary Clinton’s candidacy and thus stands as a major reason Trump got elected in 2016), and (b) Comey’s mishandling of his FBI memos about his communications with Trump, which involve media leaks. These were derelictions of duty that, in part, explain why Comey got fired.

(Aside: The Justice Department relied on the Clinton emails insubordination and usurpation of DOJ authority as the rationale for the director’s termination. But the main reason was offered by the guy who did the firing: Trump groused that Director Comey repeatedly assured him he was not a subject of the bureau’s Russia-collusion investigation, yet Comey studiously intimated, in public statements, that Trump was the main subject of the investigation. The FBI director serves at the pleasure of the president, but Comey’s willful undermining of the president gave Trump just cause to oust him — wholly apart from the Clinton emails fiasco.)

Comey Is Not Charged with What You May Think He’s Charged With

Nevertheless, the misconduct for which Horowitz rebuked Comey is unconnected to Halligan’s charges. The prosecutors’ rehashing of these episodes is meant to suggest otherwise.

At the risk of repeating myself, the Trump enthusiasts with whom I speak — annoyed at my dim assessment of Halligan’s charges against Comey (though they were quite content with my similarly dismissive take on Alvin Bragg’s incoherent charges against Trump) — share the common misunderstanding that Comey is finally getting his comeuppance for official misconduct (Russiagate, Hillary’s emails, and the Trump memos). They remain incensed that Comey was not prosecuted years ago for this misconduct. But Halligan’s case is not about those things. And if your position is that this is okay because Comey deserves to be put through the wringer, then understand: That’s no different from the “poetic justice” drivel we heard from Democrats who cheered on Bragg’s case.

Let’s be precise, then, about what Halligan has charged. She alleges that, at a Senate hearing on September 30, 2020, Comey made a false statement when, in responding to questions by Senator Ted Cruz, he denied that he had ever authorized a subordinate FBI official — “Person 3,” now identified as Columbia law professor and former FBI “special employee” Daniel Richman — to be an anonymous media source for investigative information concerning Hillary Clinton (who, the government acknowledges, is referred to as “Person 1” in the indictment).

Now, I believe this allegation is fatally flawed, before we even get to the factual recitation in the prosecutors’ submission. The indictment does not state the charge coherently; it is obvious that the subordinate FBI official to whom Senator Cruz was referring in his questions was former FBI Deputy Director Andrew McCabe, not Richman; and Cruz misspoke by asking whether Comey had authorized a leak regarding the “Clinton administration” rather than what he meant to say, the Clinton investigation. (During Comey’s tenure — 2013 to 2017 — there was no FBI investigation of the Clinton administration, in office from 1993 to 2001, so it is undeniably true that Comey did not authorize Richman, McCabe, or anyone else to leak about an FBI investigation of the Clinton administration.)

But lay those problems to the side. Let’s stick with the allegation as I have laid it out above, in the light most favorable to the government; let’s compare Halligan’s formal allegation — of which Comey can be guilty only if, while he was FBI director, he authorized Richman, during the time Richman was an FBI employee, to be an anonymous source spilling investigative information about an investigation of Hillary Clinton — to the factual recitation included in the government’s response to the vindictive-prosecution motion.

The Decision to Disclose the Reopening of the Clinton Emails Probe

The prosecutors first note (at pp. 4–6) that on October 28, 2016, Comey sent a letter to Congress reopening the Hillary Clinton emails investigation. Coming less than two weeks before the 2016 election, Comey’s disclosure ignited outrage among Democrats and their media echo chamber. It stalled Clinton’s momentum, tightening the race such that Trump eked out an Electoral College win despite losing the popular vote by nearly 3 million.

In the days following Comey’s letter, as outrage intensified, Comey corresponded with Richman in the latter’s dual capacity of (a) longtime Comey friend and confidant, who, as a public intellectual, frequently wrote on legal topics in various media outlets, and (b) FBI employee. The topic was whether Richman — wearing his Columbia professor hat, not his FBI employee hat — should accept the New York Times’ invitation to write an op-ed on why Comey had no choice but to notify Congress. That is, the discussion was not about investigative information, and Richman was talking about speaking publicly, not as an anonymous source.

At issue was a public matter: In July 2016, when Comey disclosed evidence about Clinton but recommended against charging her, he made a commitment that he would notify Congress if there were any change in the status of the investigation. In October, there was a change: Thousands of Clinton emails (some that turned out to contain classified information) had been found on devices that Clinton’s close aide, Huma Abedin, shared with her then-husband, the disgraced former congressman, Anthony Weiner; those devices had been seized by the FBI’s New York field office in a “sexting” investigation of the Weiner.

In their email correspondence, Comey agreed with Richman’s initial assessment that an op-ed would be pointless. As the media frenzy continued, however, Comey became frustrated by what he perceived as the Times’ obtuseness in not seeing two things: (a) Having made the commitment in July, he had no alternative but to inform Congress in October; and (b) in the end this would help Clinton — who Comey was sure would defeat Trump — by sparing her the scandal that would occur if Congress and the public learned only after her victory that the FBI had concealed that she was still under investigation.

Comey thus suggested that Richman could speak with his friend at the Times, Michael Schmidt, who was reporting on the controversy: “Perhaps you can make him smarter.” His email to Richman does not ask him to do this anonymously (again, the background here is whether Richman would write publicly). Nor did Comey ask Richman to convey any details about the Clinton emails investigation — the topic is simply why, having made a commitment to keep Congress informed, Comey had to honor that commitment even if it meant making a disclosure that could influence the election.

This was not an investigative leak; it was weighing in on a public discussion of Comey’s belief that he had only bad and worse options. And that is how the Times reported it on November 2, 2016 — in what was a chart, rather than a narrative news story. See “These Are the Bad (and Worse) Options James Comey Faced.” The chart contains no investigative information besides the then-already publicly known fact that the FBI had discovered hundreds of thousands of emails pertinent to the Clinton emails investigation — a fact that was publicly disclosed in Comey’s letter to Congress and related reporting, and that no one claims came from Richman.

Understand: I think what Comey did, with Richman’s help, was improper. He shouldn’t have made the July disclosure of the evidence in the Clinton emails investigation, which opened his Pandora’s box. He shouldn’t have sent the eve-of-election letter to Congress without first determining whether the Weiner-Abedin trove of emails actually contained new information that changed the decision to close the investigation. He shouldn’t have tried to shape the media coverage of his Hobson’s choices. And he shouldn’t have calculated whether disclosure would help the anticipated President-elect Clinton begin her new administration with a clean slate.

Hence, there is plenty to chastise the former director over . . . and he has been duly chastised, particularly by the IG. But this episode does nothing to prove the charge in the case — namely, that he authorized an FBI subordinate to be an anonymous media source regarding investigative information related to Hillary Clinton. And yet, this is the closest the prosecutors’ factual recitation comes to something relevant to the indictment.

The New York Times April 2017 Report on How Comey ‘Shaped an Election’

The prosecutors next relate (at page 7) that Richman was a named as a source in a lengthy April 22, 2017, report in the Times, “Comey Tried to Shield the F.B.I. From Politics. Then He Shaped an Election,” co-written by Richman’s friend Schmidt.

The prosecutors fail to mention that Richman resigned from his FBI employment on February 7, 2017, more than two months before this Times report was published. Putting aside that Richman was therefore not an FBI subordinate at the time, there is no indication in their email correspondence (which prosecutors quote) that Comey asked Richman to speak to the Times, just that he thanked him after the story was published.

Further, the observations Richman provided for attribution did not disclose any investigative information but rather contended that Comey had tried to be “apolitical and independent” in his decision-making. And the investigation Richman specifically invoked was the Trump-Russia probe, not the Clinton investigation. (Comey’s “approach to the Russia investigation fits this pattern” of “someone trying to act with independence and integrity, but within established channels.”)

As Halligan’s prosecutors note, Richman did (a) agree to pass along to Schmidt Comey’s kudos for Schmidt’s doing a “good job” in writing a “fair” report, and (b) ask whether Comey wanted Richman to speak with the New Yorkermagazine about “any badly or underdeveloped points” in its reporting, or simply do “just the usual.” That is an embarrassing window into efforts by an FBI director to shape media coverage — even as he publicly eschewed politics and contacts between law enforcement and the press. But however you judge that behavior, it’s not what the indictment accuses Comey of doing.

Richman Beseeches a Government Official to Speak to the Times about the Clinton Emails Case

The prosecutors next relate (at page 7) a February 11, 2017, email in which Richman urged an unidentified government official (called “Individual 3” in the submission) to speak with Schmidt in connection with a “huge piece on the HRC emails” that the Times was preparing. The government official in question worked with Comey at both the FBI and DOJ. (I believe I know to whom the prosecutors are referring, but the government hasn’t confirmed it, so I won’t surmise.) Richman urged the official to speak with Schmidt “on background as he tries to understand Jim’s decision making to the extent possible,” and the official agreed to “reach out.”

Again, by February 11, Richman no longer worked for the FBI and there is no indication that Comey asked him to encourage the government official (who apparently also was no longer at the FBI) to speak to the Times. The prosecutors suggestively quote Richman as saying that Schmidt has “had a ton of background conversations with players and non-players (like me).” But that doesn’t indicate that Richman, at Comey’s direction, communicated information about the Clinton probe — an investigation in which Richman, according to his own words, was a “non-player.” This conversation does nothing to prove or corroborate the charges in the indictment.

Richman Speaks with the Times after Comey’s Firing

The prosecutors revive two widely reported and extensively investigated incidents, both of which occurred after President Trump’s May 9, 2017, firing of Comey. First, Comey greenlighted Richman’s request to be permitted to speak to Schmidt about Comey’s White House dinner with Trump, at which Comey alleges that Trump asked for a pledge of loyalty. Second, Comey subsequently asked Richman to tell Schmidt about Comey’s February 14, 2017, Oval Office meeting, at which Comey said Trump asked him to go easy on Michael Flynn — the retired general and, fleetingly, Trump’s first national security adviser, whom Trump had fired and the FBI was then investigating (see pp. 7–11).

This is tawdry behavior. To my mind, Comey should not have shared his version of a private conversation between himself (in his official capacity as FBI director) and the president. It was more egregious to go public with information relating to the pending FBI investigation of Flynn (and Comey’s claimed aim for this departure from FBI and DOJ rules — namely, to influence pending investigations by ratcheting up public pressure for the appointment of a special counsel — was wrongheaded, at best). But nothing about these notorious incidents is relevant to the indictment: Neither Comey nor Richman was an FBI official at the time, and the investigative information regarding Flynn had nothing to do with Hillary Clinton.

The Prosecutors’ Misleading Version of Comey’s Testimony About Clinton’s Campaign Plan to Smear Trump

While unrelated to Richman, it is worth pausing over the prosecutors’ skewed version of other testimony Comey gave to the Senate on September 30, 2020, which appears to have led to a skewed false statement charge that Halligan proposed but the grand jury refused to approve.

The prosecutors intimate that, in responses to questions by Senators Lindsey Graham (R., S.C.) and Josh Hawley (R., Mo.), Comey said he couldn’t recall being informed about

U.S. presidential candidate Hillary Clinton’s approval of a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her own use of a private email server.

The prosecutors stress that Comey’s handwritten notes (“HRC plan to tie Trump”) show that he must have been lying when he testified that “it doesn’t ring any bells with me,” “I don’t know what that refers to,” and “I don’t remember receiving anything that is described in that letter” (emphasis added).

Conveniently, the prosecutors don’t explain the “letter” they quote Comey as referring to. That’s because it would explain why there is nothing surprising, much less perjurious, about Comey’s testimony.

The September 29, 2020, letter, submitted to the Senate the day before Comey’s testimony, was written by John Ratcliffe (then Trump’s director of National Intelligence, now his CIA director). After describing the above-excerpted intelligence about the Clinton campaign plan, Ratcliffe explained that “an investigative referral to FBI Director James Comey” had been forwarded by U.S. intelligence officials on September 7, 2016 (emphasis added). In context, what Comey was saying was that he couldn’t recall receiving an investigative referral from intelligence agents, not that he couldn’t recall hearing the information about the Clinton campaign’s plan.

In their recitation, the prosecutors conceal this by not mentioning the referral. Moreover, there is good reason why Comey might not have recalled receiving a “referral.” As I’ve previously explained, a referral is generally understood as a request for a criminal investigation; what agents working for Obama’s then–CIA Director John Brennan sent Comey in September 2016 was not a request that Hillary Clinton be investigated; it was a notice to alert other Obama officials that the Clinton campaign was planning to tie Trump to Russia in the closing months of the campaign. President Obama endorsed and campaigned for Clinton; manifestly, Obama’s underlings wanted Clinton to be elected, not investigated.

Halligan asked the grand jury to indict Comey (in what was originally proposed as Count One of the indictment) on this misleading theory that Comey willfully lied by denying knowledge of the plan to smear Trump. Clearly, the president and his base want that accusation in the public domain; their conceit is that the Comey-led FBI conspired with the Clinton campaign to slander Trump. No surprise there: Russiagate special counsel John Durham’s final report provides significant support for the proposition that the FBI knew the Russia collusion narrative was a Clinton campaign ruse yet investigated it as if it were a weighty allegation.

That, however, is not what Comey is charged with. The counts the grand jury approved are unrelated to Russiagate. The grand jury refused to indict Comey for lying about his knowledge of the Clinton campaign plan — surely because he was confusingly asked about whether he recalled the referral, not the plan itself.

And because the grand jury rejected the charge tying the FBI to the Clinton campaign’s Russiagate smear, the prosecutors’ inclusion of information related to that charge in their submission is apropos of nothing. That is, like the other claims in the prosecutors’ recitation, it was added, not to show that Comey is guilty of the charges in the indictment, but to portray him as a lout.

No doubt, the president will be pleased by his Justice Department’s publication of information besmirching his political foe in a high-profile submission to the court. But what conclusion can the court be expected to draw? A government submission’s gratuitous inclusion of unsavory information strongly suggests that the prosecution is vindictive. Ironically, that’s exactly what Halligan’s submission purports to be refuting.