WASHINGTON — Former FBI director James Comey told Congress in 2017 that he “never” was an anonymous source about investigations into President Trump and Hillary Clinton, and “no,” he had not authorized subordinates to be anonymous sources for journalists about those two investigations.
Now, the 64-year-old faces up to five years in prison after being charged with lying to Congress and obstruction of justice — but experts say the case appears weak and politically motivated based on the public evidence.
The indictment, secured by acting US Attorney for the Eastern District of Virginia Lindsey Halligan, is founded on a statement by Comey’s former deputy, Andrew McCabe, who told the Justice Department inspector general’s office that Comey told McCabe it was “good” that he had passed information to the Wall Street Journal for an Oct. 30, 2016, article on a pending investigation of the Clinton Foundation.
Comey told Sen. Ted Cruz (R-Texas) at a September 2020 Senate Judiciary hearing that “I stand by the [2017] testimony” — refreshing the five-year statute of limitations for false testimony and setting a Sept. 30, 2025, deadline to bring charges.
McCabe told the inspector general’s office that he “did not recall discussing the disclosure with Comey in advance of authorizing it, although it was possible that he did,” according to the IG’s report on the matter in April 2018, which quoted Comey as saying McCabe “definitely” did not tell him about the leak.
“The director and the deputy director of the FBI are the only two FBI officials who have the authority and the responsibility to authorize the release of information to the media,” McCabe told the Senate Judiciary Committee in November 2020.
Trump celebrated the indictment against his longtime critic, which followed the resignation of prior US Attorney Erik Siebert, whose team had drafted a memo recommending against charging Comey.
Mike Davis, a former chief counsel for Sen. Chuck Grassley (R-Iowa) and close Trump ally, said that he believes prosecutors are likely to bring additional allegations in the case, which will be handled in the Alexandria, Va.- based Eastern District of Virginia (EDVA).
“The case was strong enough for the grand jury to indict,” said Davis, who worked at the Justice Department during the Goerge W. Bush administration. “Comey clearly lied twice. He lied in 2017 to Grassley. He lied again in 2020 to Ted Cruz, and this is just the beginning of Comey’s legal troubles.
“I imagine there will be a superseding indictment on this case, and I’m pushing very hard for the Crossfire Hurricane investigation to get moving,” he added.
Davis acknowledged there will still be difficulties for the prosecution in the deep blue Virginia jurisdiction, “which is full of Democrats and including government workers” with proceedings overseen by a Biden-appointed judge, Michael Nachmanoff.
Legal skeptics of the case said it’s possible that evidence exists showing Comey deliberately misled Congress, but noted that there are other clear issues with the case — including the fact that Siebert’s memo opposing charges may be admitted as evidence of vindictive prosecution and be coupled with Trump’s public denunciations of Comey.
There’s also the fact that McCabe’s testimony to the inspector general stated that Comey approved of the Clinton Foundation leak after the fact, rather than sanctioning it ahead of time.
McCabe was fired by then-Attorney General Jeff Sessions in 2018 due to the inspector general report’s allegation that he repeatedly “lacked candor” with Comey and other officials.
“Andrew McCabe, if it goes to trial and he testifies for the government, he will be eviscerated,” said Gene Rossi, who worked nearly 20 years as an assistant US attorney in the same district where the case is pending.
“If they go to trial — if it gets that far and it’s not killed or dismissed because of vindictive and selective prosecution, facts for which are abundant — they have got a proof problem at trial,” said Rossi, who worked with Comey while he, too, worked as an EDVA prosecutor from 1996 to 2001.
“McCabe said [he] went and told Comey ‘I did it’ after the fact. But even more important is this, what did the IG conclude about McCabe’s testimony to the IG? It lacked credibility.”
McCabe, another prominent Trump adversary, leaked the information about the existence of the Clinton Foundation investigation late in the 2016 campaign as controversy swirled about a nearly $500,000 donation to his wife’s unsuccessful 2015 Virginia state Senate campaign from Clinton ally Terry McAuliffe’s political action committee.
Several former federal prosecutors declined to speak on the record about the Comey case, citing Trump administration actions to penalize major law firms for their prior legal work and universities who clashed with officials on policy grounds.
One longtime former prosecutor said that Siebert’s memo is likely to be a major blow if it’s admitted as evidence at trial.
“You could imagine how a jury of citizens in the community would receive a memo like that from career prosecutors saying that it doesn’t meet the standard,” this person said.
Former federal prosecutor Neama Rahmani, meanwhile, predicted of the Trump DOJ: “I think they lose this case.”
“If the DOJ cared about this leak, they would have prosecuted it during the first Trump administration,” added Rahmani, who argued that “even if it was false, it has to be material, and it has to be intentional, right? You have to intend to mislead, intend to obstruct Congress. So there’s that sort of ready-made defense.”
“I think there’s a good selective prosecution, vindictive prosecution defense here,” he added. “And the reality is we’re talking about Northern Virginia being predominantly Democrat, it’s hard to get 12 out of 12 jurors in a highly politicized case like this.”
Rahmani noted that one additional count of lying to Congress was rejected by grand jurors.
“I put more than 1,000 people in federal prison,” he said. “I never once failed to get an indictment, or a true bill, on any count. [They couldn’t] even get 12 out of 23 grand jurors.”
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