Evidence Behind Comey Indictment Is Unclear

[Thiệu Ngô]

James Comey, a former director of the FBI, was indicted on two criminal counts on Sept. 25 by a federal grand jury in Virginia. But the barely two-page indictment provides very little information about the underlying evidence for the charges of lying to Congress.

By D'Angelo Gore

The indictment came just days after President Donald Trump publicly pressed the Department of Justice to prosecute Comey and installed Lindsey Halligan as the interim U.S. attorney for the Eastern District of Virginia. Halligan, a former personal attorney for Trump, replaced Erik Siebert, who was pushed out of the position.

ABC News reported, based on anonymous sources, that Siebert and other career prosecutors who led the investigation of Comey had believed there was insufficient evidence to bring charges against him. It was Halligan, who had no prior experience as a prosecutor, who presented the case to the grand jury.

Comey was FBI director from 2013 to 2017, when Trump fired him.

In this story, we cover the few details we know about the indictment and what Comey told Congress.

What are the charges against Comey?

The grand jury indicted Comey on two criminal counts: one for making a false statement to Congress and the other for obstructing a congressional proceeding. The grand jury declined to indict him on a third charge.

All we know for certain is that the indictment pertains to congressional testimony Comey gave before the Senate Judiciary Committee on Sept. 30, 2020.

The indictment alleges that Comey “willfully and knowingly” made a “materially false, fictitious, and fraudulent statement” to a senator that day when Comey said he “had not ‘authorized someone else at the FBI to be an anonymous source in news reports’ regarding an FBI investigation concerning PERSON 1.” The statement was false, the indictment says, because Comey “then and there knew, he in fact had authorized PERSON 3 to serve as an anonymous source in news reports regarding an FBI investigation concerning PERSON 1.”

The indictment does not identify “PERSON 1,” “PERSON 3” or the news reports in question. But the indictment appears to be referring to an exchange Comey had when questioned in the 2020 hearing by Republican Sen. Ted Cruz, who had asked Comey about previous testimony Comey gave to Congress on May 3, 2017, days before Trump fired Comey.

What did Cruz ask Comey?

Cruz said Republican Sen. Chuck Grassley had asked Comey in the 2017 hearing if he had “ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation,” and if he had “ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton administration.”

Grassley actually had asked about reports about the “Clinton investigation” – not the “Clinton administration,” as Cruz said. (The Trump investigation was about alleged collusion between Russia and Trump’s campaign during the 2016 election, and the Clinton investigation was about Hillary Clinton’s use of a private email server as secretary of state.)

Comey answered “never” and “no” to Grassley’s questions, Cruz pointed out.

Cruz then said that Andrew McCabe, who was Comey’s deputy director at the FBI, had admitted to leaking information to the Wall Street Journal in October 2016 and said that Comey was “directly aware of it” and “directly authorized it.” When Cruz said that Comey and McCabe could not both be telling the truth, Comey said: “I can only speak to my testimony. I stand by the testimony you summarized that I gave in May of 2017.”

Is the indictment about McCabe?

But Cruz was wrong when he claimed that McCabe had said Comey approved the leak. McCabe had already admitted that he – not Comey – authorized two other FBI officials to provide information about an investigation into the Clinton Foundation to the Wall Street Journal for an Oct. 30, 2016, story. A 2018 inspector general report concluded that Comey learned of the leak after the story was published, and that McCabe, in a meeting with Comey, was not initially forthcoming about being the one who permitted the disclosure to a Wall Street Journal reporter.

McCabe told IG investigators that he “did not recall telling Comey prior to publication of the [Wall Street Journal] article that he intended to authorize or had authorized” the leak “although he said it was possible he did.” McCabe told investigators that after the article was published, he told Comey that he had authorized the leak and Comey “did not react negatively, just kind of accepted it” and that Comey thought it was “a ‘good’ idea,” according to the IG report.

Comey gave IG investigators a different account, saying that, at the time, McCabe “definitely did not tell me that he authorized” the leak. The IG investigators concluded based on “considerable circumstantial evidence” that “the overwhelming weight of that evidence supported Comey’s version of the conversation.”

McCabe spoke to the issue this week, saying in a Sept. 28 CNN interview that because Comey didn’t approve the leak, “I absolutely do not believe” that issue is the premise for the Comey indictment.

McCabe said the Justice Department has not interviewed him as part of its investigation. “If my interactions with Jim Comey nine years ago in October 2016 was going to be the basis of this entire prosecution, it’s unbelievable to think that prosecutors wouldn’t at least want to sit down and hear what I had to say about it,” McCabe said.

What else could the indictment be about?

Jake Tapper, who interviewed McCabe on CNN, reported on his weekday show Sept. 26 that an unnamed source familiar with the indictment told Tapper that “PERSON 3” is Daniel Richman, a former federal prosecutor who is currently a law professor at Columbia Law School. Richman is a personal friend of Comey and worked as a “special government employee” at the FBI from June 2015 until February 2017, during Comey’s tenure as head of the FBI.

Comey previously admitted to Congress in June 2017 that, after he was fired as director by Trump the month prior, he had Richman relay to the New York Times the “substance” of a February 2017 memo Comey made documenting a dinner conversation with Trump about an FBI investigation of Trump’s former national security adviser, Michael Flynn. Comey said he had Richman do it in hopes that it “might prompt the appointment of a special counsel” in the investigation of Russian influence in the 2016 election.

But Comey had Richman do that after both men were no longer employed by the FBI.

How else could Richman be involved?

Tapper said his source told him that Comey’s indictment is related to the FBI’s “Arctic Haze” investigation of leaked classified information that wound up in news articles published early in 2017. The articles in question, written by reporters for the Washington Post, New York Times and the Wall Street Journal, included details about the Russia investigation and the investigation of Clinton’s emails.

Clinton is believed to be “PERSON 1” mentioned in the Comey indictment, according to news reports citing unidentified individuals briefed on the charges.

Comey and Richman were interviewed as part of the “Arctic Haze” investigation, and an FBI memo about the probe released in August said that Comey often used Richman “as a liaison to the media” and that Richman “contacted journalists to correct stories critical of Comey, the FBI and to shape future press coverage.” However, the memo said Richman told FBI investigators that “Comey never asked him to talk to the media.”

And while Richman acknowledged being a source for a New York Times reporter who co-authored one of the stories featuring classified information about the Clinton emails investigation, Richman told investigators that he believed that he neither provided nor confirmed the classified details, which he said the reporter knew more about than him.

The FBI memo ultimately concluded, “The investigation has not yielded sufficient evidence to criminally charge any person, including Comey or Richman, with making false statements or with the substantive offenses under investigation.” The source of the leaks was never identified, the memo said.

News outlets reported earlier this month that Richman was subpoenaed and interviewed as part of the investigation into whether Comey had him leak FBI information and then lied about it. But “Mr. Richman’s statements to prosecutors were not helpful in their efforts to build a case against Mr. Comey, according to two people familiar with the matter,” the New York Times reported.

When may we see more evidence?

More specifics about the evidence against Comey may not become known until the case goes to trial – if there is a trial. Several legal experts have said the judge overseeing the case could end up dismissing it because of a potential political motivation for the indictment.

For one, the indictment came days before the statute of limitations to charge Comey for his 2020 testimony was set to expire. In addition, the same day that he named Halligan to be the interim U.S. attorney for the Eastern District of Virginia, Trump made it publicly known that he wanted the Justice Department to prosecute Comey and other officials Trump has sparred with for years.

“We can’t delay any longer, it’s killing our reputation and credibility,” Trump wrote in a Sept. 20 Truth Social post addressed to “Pam,” presumably referring to U.S. Attorney General Pam Bondi. “They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”

The president said he had seen statements and social media posts arguing that “Nothing is being done” about Comey, as well as Democratic Sen. Adam Schiff and New York Attorney General Letitia James – two more of Trump’s perceived political foes under DOJ investigation. “They’re all guilty as hell, but nothing is going to be done,” Trump quoted the alleged messages as saying.