The Flimsy, Risky Indictment of James Comey
A recent indictment against former FBI Director James comey centers on a claim that his 2017 testimony to Congress was false.The core of the accusation revolves around a statement Comey made during a hearing, summarized as follows: “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?”
Comey responded by stating, “I can only speak to my testimony. I stand by the testimony you summarized that I gave in May of 2017.” The indictment alleges this statement was false, asserting that Comey “then and there knew” he had authorized an anonymous source – identified as “PERSON 3” – to provide information to news outlets regarding an FBI investigation concerning “PERSON 1,” widely understood to be Hillary clinton and related to investigations into her emails and the Clinton Foundation.
The case rests on a remarkably thin premise. For a statement to be criminally false, it must be made “knowingly and willfully.” Any obstruction of Congress requires proof of “corrupt” intent. The evidence supporting these claims against Comey appears weak.
A 2018 report by the Justice Department’s Inspector General detailed that Andrew McCabe, then Deputy Director of the FBI, authorized FBI officials to speak with Wall Street Journal reporter Devlin barrett in October 2016 about the FBI’s investigation into the Clinton Foundation. Though, the Inspector General found no evidence that Comey participated in that authorization.Actually, the report suggests McCabe may have misled Comey regarding his role in the leak after the article was published. The Inspector General concluded that “the overwhelming weight of that evidence supported comey’s version of the conversation,” a finding McCabe disputed.
This leaves little evidence to suggest Comey pre-approved the leak.Evidence of him blessing such action after the fact is, at best, contested. The prosecution’s likely key witness is McCabe, a figure repeatedly attacked by former President Trump for alleged bias. Notably, the Justice Department attempted, and failed, to prosecute McCabe during Trump’s first term over alleged misstatements to investigators.
As Benjamin Wittes and Anna Bower wrote for Lawfare prior to the indictment, “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.”
While it remains a possibility the indictment references a separate incident – Comey’s use of Columbia Law School professor Daniel Richman to share information with the New York Times regarding President Trump’s 2017 requests for a loyalty pledge – this was not raised during Comey’s Senate testimony. Prosecutors recently interviewed Richman, but his involvement wasn’t part of the original congressional exchange.
