On the menu today: It’s not that the indictment of former FBI Director James Comey isn’t a bombshell, but it feels like it’s being perceived differently than what it actually is. Comey’s indictment isn’t over Russiagate, or efforts to investigate and prosecute Trump. It’s about denying to Congress that he authorized Andrew McCabe to leak information that made McCabe look better (and arguably made Comey look worse as a manager of the bureau). Whether or not you find Comey’s denials convincing, proving that he’s lying in a court of law is going to be a tall order, suggesting that the former FBI director will face decent odds before a northern Virginia jury.
The Comey Indictment
To understand why a federal grand jury indicted Comey on Thursday, we must go all the way back to the closing days of the 2016 presidential campaign.
On October 30, 2016, Wall Street Journal reporter Devlin Barrett wrote an article with the headline, “FBI in Internal Feud Over Hillary Clinton Probe.” The most consequential revelation in that story was that the FBI had begun an investigation into the Clinton Foundation, run by Bill and Hillary Clinton:
New details show that senior law-enforcement officials repeatedly voiced skepticism of the strength of the evidence in a bureau investigation of the Clinton Foundation, sought to condense what was at times a sprawling cross-country effort, and, according to some people familiar with the matter, told agents to limit their pursuit of the case. The probe of the foundation began more than a year ago to determine whether financial crimes or influence peddling occurred related to the charity.
Some investigators grew frustrated, viewing FBI leadership as uninterested in probing the charity, these people said. Others involved disagreed sharply, defending FBI bosses and saying [FBI deputy director Andrew] McCabe in particular was caught between an increasingly acrimonious fight for control between the Justice Department and FBI agents pursuing the Clinton Foundation case.
Up until then, Comey had refused to confirm or deny whether the bureau was investigating the Clinton Foundation, even in testimony to Congress. The U.S. Department of Justice’s Office of Inspector General conducted a thorough investigation about the leak and found “FBI text messages by McCabe’s then-Special Counsel that reflected that she and the then-Assistant Director for Public Affairs (“AD/OPA”) had been in contact with Barrett on October 27 and 28, 2016.”
The Office of Inspector General interviewed McCabe several times and concluded in its report that “McCabe lacked candor when he stated that he told Comey on October 31, 2016, that he had authorized the disclosure to the WSJ.” That OIG report was damning of McCabe and relatively exonerating of Comey:
Comey told [the OIG] that, prior to the article’s publication, he did not have any discussions with McCabe regarding disclosure of the August 12 PADAG call.
According to Comey, he discussed the issue with McCabe after the article was published, and at that time McCabe “definitely did not tell me that he authorized” the disclosure of the PADAG call. Comey said that McCabe gave him the exact opposite impression:
When asked by the OIG about whether he would have approved the disclosure about the PADAG call to the WSJ, Comey stated: “[S]o just to make sure there’s no fuzz on it, I did not authorize this. I would not have authorized this. If someone says that I did, then we ought to have another conversation because I, it doesn’t make a lot of sense to me.”
For what it’s worth, the OIG report concluded, “McCabe did not tell Comey on or around October 31 (or at any other time) that he (McCabe) had authorized the disclosure of information about the CF Investigation to the WSJ. Had McCabe done so, we believe that Comey would have objected to the disclosure.”
Fast forward to Comey’s appearance before the Senate Judiciary Committee, September 30, 2020:
Senator Ted Cruz: Let’s shift to another topic. On May 3rd, 2017, in this committee, Chairman Grassley asked you point blank, “Have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?” You responded under oath, “Never.” He then asked you, “Have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton administration?” You responded again under oath, “No.” Now, as you know, Mr. McCabe, who works for you, has publicly and repeatedly stated that he leaked information to the Wall Street Journal and that you were directly aware of it and that you directly authorized it. Now, what Mr. McCabe is saying and what you testified to this committee cannot both be true. One or the other is false. Who’s telling the truth?
Mr. Comey: I can only speak to my testimony. I stand by the testimony you summarized that I gave in May of 2017.
Senator Cruz: So, your testimony is you’ve never authorized anyone to leak? And Mr. McCabe, if he says contrary, is not telling the truth, is that correct?
Mr. Comey: Again, I’m not going to characterize Andy’s testimony, but mine is the same today.
Keep in mind, the indictment of Comey yesterday has next to nothing to do with “Russiagate,” or targeting Trump, or his criticism of Trump. Last night, President Trump raged on Truth Social that Comey was a “dirty cop” and that he had been indicted on “various illegal and unlawful acts.”
The indictment is about Comey’s testimony to Congress that he never authorized McCabe to leak information about an FBI investigation into the Clinton Foundation. (Considering that in October 2016, the revelation that the FBI had investigated the Clinton Foundation was more harmful to Hillary Clinton’s campaign than Donald Trump’s campaign, the leaker was more likely helping Trump than hurting him, although I think the leak’s effect on the 2016 presidential campaign was negligible.)
Federal grand juries are made up of 16 to 23 members, and at least twelve jurors must concur to issue an indictment. The grand jury in Alexandria yesterday did not indict Comey on a second charge of lying to Congress.
The Washington Post reported that “Lindsey Halligan — now interim U.S. attorney for the Eastern District of Virginia — personally presented the case against Comey to the grand jury on Thursday, said two people familiar with the matter who spoke on the condition of anonymity because they were not authorized to speak publicly. Before she was sworn in Monday, Halligan had no prosecutorial experience.”
ABC News reported, “The prosecutors earlier this week summarized their findings — that probable cause does not exist to secure an indictment, let alone a conviction at trial — in a detailed declination memo for Lindsey Halligan, President Donald Trump’s newly appointed U.S. attorney for the Eastern District of Virginia, sources said.”
Eh, those prosecutors were half-right, half wrong. Ham sandwiches, look out; a northern Virginia jury isn’t as reflexively sympathetic to a Trump critic as a District of Columbia one is, apparently.
In a video posted online Thursday night, Comey insisted he was innocent and said he expected to be exonerated.
“My family and I have known for years that there are costs to standing up to Donald Trump, but we couldn’t imagine ourselves living any other way. We will not live on our knees, and you shouldn’t either,” Comey said. “My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system, and I’m innocent, so, let’s have a trial.”
The statue of limitations for lying to Congress is five years after the false statement was made, so the Department of Justice was up against a September 30 deadline. Each of the two felony charges Comey faces carries a maximum possible penalty of five years in prison.
To get acquitted, Comey’s lawyers will have to convince at least one juror that former FBI Deputy Director Andrew McCabe is a duplicitous SOB who lied when he claimed Comey had given permission to leak the information when Comey did not. That does not exactly sound like Mission: Impossible.
In his report, Michael Horowitz, the former DOJ inspector general, concluded that Comey was telling the truth and McCabe was lying. Horowitz appears to be a trusted figure within the Trump administration. In the description of the New York Times, the 2019 report from Horowitz and his team “uncovered a staggeringly dysfunctional and error-ridden process in how the F.B.I. went about obtaining and renewing court permission under the Foreign Intelligence Surveillance Act, or FISA, to wiretap Carter Page, a former Trump campaign adviser.” When Trump fired twelve inspectors general in January, Horowitz was kept in place; he moved to become the inspector general of the Federal Reserve Board in June.
Horowitz does not have the record of a man who is inclined to sweep problems under the rug.
In the coming days, there will be a lot of talk about Comey as a martyr and progressives proclaiming he’s a hero, and a lot of furious denunciations of him from the MAGA crowd. I think there are severely negative consequences when a former FBI director leaves his position and becomes a hero of the resistance and laughs it up with Stephen Colbert, looking and acting like just another Democratic talking head. The FBI and other government agencies want the public to perceive them as nonpartisan straight shooters (metaphorically as well as literally) who act in the national interest, not in any political interest. That perception is corrosively undermined by retired government agency leaders who become partisan cheerleaders.
But Comey wasn’t indicted for being a partisan hack. What will be at issue in that federal courtroom in the months to come is the question of whether federal prosecutors can prove that James Comey authorized McCabe to leak that information to the Wall Street Journal. At this point, this appears to be McCabe’s word against Comey’s.
ADDENDUM: When the likely government shutdown blows up in Chuck Schumer’s face, remember he was warned about that outcome . . . repeatedly.