Comey Case Developments: (3) Insufficiency of the Indictment

As predicted, the indictment’s defects in serving its primary constitutional purpose of providing notice of what the defendant is alleged to have done is already a big issue.

In furtherance of the Sixth Amendment’s mandate that the accused be “informed of the nature and cause of the accusation,” Rule 7(c)(1), Fed.R.Crim.P., dictates that an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Yet. Comey’s lawyer, Patrick Fitzgerald, informed Judge Nachmanoff that the government still has not revealed to the defense the identities of “Person 1” and “Person 3” described in the indictment.

To recap, it is alleged that Comey, while FBI director, “authorized someone else at the FBI” to serve as an anonymous source for news reports about “an FBI investigation concerning Person 1.” Though the poorly written indictment is not totally clear on this point, it appears that the FBI official Comey allegedly authorized to leak information is otherwise described in count 1 as “Person 3.”

Although it’s puzzling that the government has not confirmed this for the defense, we can be reasonably confident that Person 1 is Hillary Clinton. That’s because there is a reference to Person 1 in a false statement charge that the grand jury declined to indict that appears to pertain to Clinton — i.e., Person 1’s “approval of a plan concerning” “Person 2 and the 2016 U.S. Presidential election.” This appears to be a reference to intelligence reporting about Clinton’s approval of her campaign’s strategy to portray Donald Trump (presumably, Person 2) as a Kremlin collaborator. Plus, in the false statement count the grand jury did approve, the reference to Person 1 pertains to Comey’s alleged lie in response to questions posed by Senator Ted Cruz about an FBI leak regarding its probe of the Clinton Foundation.

Person 3, however, is still a mystery. That’s a due process problem because Person 3 is the key to the prosecution’s case: the FBI official supposedly authorized by Comey to leak to the press. Most speculation about Person 3’s identity has centered on two possibilities: former FBI deputy director Andrew McCabe and Columbia law professor Daniel Richman, a former FBI contractor. Without belaboring what I’ve already detailed, neither of them is a good fit based on relevant reporting.

Fitzgerald elaborated, “We still haven’t been told precisely what is in count 1 or count 2” — the false statement and obstruction charges (the latter seems to depend on the former, vaguely alleging that Comey obstructed Congress by providing false testimony). It is fair enough to observe that defendants habitually complain that the government hasn’t given them sufficient notice. Here, though, we can read the indictment for ourselves as find that it raises more questions than it answers. Would anyone really be surprised if, in the Trump DOJ’s case against the president’s archnemesis, the DOJ has been less than forthcoming about additional information?

It is very hard for defendants to get an indictment dismissed on the ground that it is insufficiently pled. Despite Rule 7’s above-quoted mandate of clarity, courts tend to uphold an indictment if it provides the approximate date of the alleged offense and minimally sets out the statutory elements of the offense(s) charged. (The “elements” are the facts that prosecutors must prove beyond a reasonable doubt to establish guilt.) The rationale for declining to dismiss sparse indictments pretrial is that, if the defendant needs more information to prepare a defense, the indictment can be supplemented by a bill of particulars and other discovery.

Here, the indictment informs the defense that Comey is alleged to have lied and obstructed at a Senate hearing on September 30, 2020; Fitzgerald, however, could have a persuasive argument that, while the indictment tells Comey what statutory offenses are charged, it does not lay out the elements in a way that coherently describes Comey’s alleged lie. After all, how can he defend himself against an accusation that he authorized a subordinate to leak if the Justice Department refuses to tell him who the subordinate allegedly is?

[ACM: Paragraph deleted. I’ve corrected this post to remove a contention that, because the statute of limitations has now expired, the case could not be re-indicted if the court were to dismiss the indictment pretrial. For more on that, see this post.]