President Donald Trump finally realized one of his many revenge fantasies. The Department of Justice that he has pressed to pursue his critics and political opponents on Thursday indicted former FBI Director Jim Comey. A wildly unqualified lackey Trump appointed US attorney for the Eastern District of Virginia brought charges against Comey after her predecessor—who was forced out by Trump—and career prosecutors found there was no solid case against Comey.
The brief, five-paragraph indictment is unusually vague. It alleges that Comey on September 30, 2020, lied to Congress and obstructed an investigation by “falsely stating to a U.S. Senator during a Senate Judiciary Committee hearing that he…had not ‘authorized someone else at the FBI to be an anonymous source in news reports’ regarding an FBI investigation.”
That’s it. But there’s a big problem with this indictment: That’s not what exactly Comey said. First, some background. This alleged false statement supposedly occurred when Comey testified to the Senate Judiciary Committee during a hearing held by Republicans as part of their ongoing crusade to depict the Trump-Russia investigation as an illegitimate Deep State plot against the president. But his remark was not about the main subject at hand. While questioning Comey, Sen. Ted Cruz (R-Texas) asked him about something else: the investigation of an FBI leak. That’s the portion of Comey’s testimony that appears to be at the center of this case.
This leak occurred in 2016 when Andrew McCabe, then the FBI deputy director, authorized other FBI officials to tell a Wall Street Journal reporter about a meeting in 2016 in which McCabe had disagreed with Justice Department officials about the handling of an investigation of the Clinton Foundation. (FBI agents had continued the inquiry after Justice Department officials had concluded there wasn’t much to case, and McCabe had believed continuing the inquiry was warranted. Eventually, no prosecutions ever materialized.) A Wall Street Journal piece that included a description of this meeting was published on October 30, 2016, shortly before the election.
Later, the Justice Department inspector general investigated the leak and released a report in February 2018. According to the IG, McCabe had told IG investigators that Comey had approved of this leak. Comey, though, said otherwise. There was no hard-and-fast evidence that resolved the conflict between their accounts, but the IG, citing a long list of circumstantial evidence, concluded that McCabe did not tell Comey that he had authorized others to share that information with the Wall Street Journal. It noted, “Had McCabe done so, we believe that Comey would have objected to the disclosure.” The IG said that McCabe had exhibited a “lack of candor” with Comey and with the IG investigators.
Comey, according the IG, had done nothing wrong in this episode. Still at the 2020 hearing Cruz pressed the former FBI director on this. Here’s the full exchange.
Cruz: On May 3rd, 2017, in this committee, Chairman [Chuck] 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.”
As you know, Mr. McCabe, who worked 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?
Comey: I can only speak to my testimony. I stand by the testimony you summarized that I gave in May of 2017.
Cruz: So you our testimony is you’ve never authorized anyone to leak, and Mr. McCabe, if he says contrary is not telling the truth.
Comey: Again, I’m not going to characterize Andy’s testimony. But mine is the same today.
That’s it. The indictment gives the impression that Comey made a remark during this testimony in which he said he had not “authorized someone else at the FBI to be an anonymous source in news reports.” But Comey never directly said those words. His response was: “I stand by the testimony you summarized.” The indictment, drawing on the question that Comey was asked at that earlier hearing, is putting words in his mouth. There’s another problem for the prosecution. According to the IG report, McCabe said he spoke to Comey after the Wall Street Journal article appeared and this is supposedly when Comey approved of the disclosure. The IG concluded Comey did no such thing. But if he had, would an after-the-fact approval count as an authorization? That’s a tough argument to make.
And there’s more. That question which Grassley presented to Comey in 2017 that Cruz cited was specific, referring only to “news reports about the Trump investigation or the Clinton administration.” Note that Grassley had mentioned the Clinton administration, not the Clinton Foundation. His query technically did not cover whatever had happened regarding the leak to the Wall Street Journal about the Clinton Foundation investigation.
So when Comey told Cruz that he stood by his previous testimony he was not truly addressing the leak issue related to the Wall Street Journal article. So how could he have lied about it? Consequently, it could be hard to convict him by showing that he had approved of that particular leak—which, according to the Justice Department IG, he did not.
In a video he posted on social media Thursday night, 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.”
At this point, it’s hard to have a full understanding of the case. Because the indictment is so vague, it is not yet publicly known that the charges are indeed based on the Wall Street Journal leak. That’s a reasonable assumption, and the media reporting at the moment is focused on the McCabe leak. But perhaps there could be another disclosure of sensitive information involved. Still, the problems with the indictment would remain.
This case is likely destined to be bogged down in word games. But words and precision are crucial to indictments that accuse a person of lying to Congress. And in this instance, it is no surprise that the indictment is sloppy, vague, and misleading, for this is an act of vengeance and not justice—which is what makes the case so dangerous.
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