The tragicomical indictment of James Comey
In a sane country this thing would be laughed out of court.
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There it is.
For the last few days, the indictment of former FBI Director James Comey felt inevitable, so when news of it dropped Thursday night, it wasn’t as much a surprise as a confirmation that the Trump administration is completely out of control.
ABC News broke the news Thursday that Comey had been indicted for obstruction and making a false statement in relation to his 2020 testimony before the Senate Judiciary Committee. NBC News reported that the charges are based on testimony Comey gave in a September 30, 2020, hearing. During it, Sen. Ted Cruz asked Comey about his 2017 testimony, when Comey said he did not authorize former FBI Deputy Director Andrew McCabe to leak anything to the press. Comey stood by what he testified three years earlier, but MAGAs are convinced he lied.
Ryan Goodman of Just Security has a good rundown on Bluesky of the flimsy basis of the charges against Comey, which can basically be summed up as “Ted Cruz misunderstands or mischaracterizes things or both.”
Why are we all guessing at what the charges are based on when the indictment is available? Well, because Lindsey Halligan, one of Trump’s myriad former personal attorneys and currently his handpicked acting US attorney for the Eastern District of Virginia, didn’t really see fit to include much in the way of detail.
The indictment clocks in at 1.5 pages, and you can read the whole thing in about 30 seconds if you have some time during a commercial break. Here’s the entirety of the explanation of the first charge:
1. On or about September 30, 2020, in the Eastern District of Virginia, the defendant, JAMES B. COMEY JR., did willfully and knowingly make a materially false, fictitious, and fraudulent statement in a matter within the jurisdiction of the legislative branch of the Government of the United States, by falsely stating to a U.S. Senator during a Senate Judiciary Committee hearing that he, JAMES B. COMEY JR., had not “authorized someone else at the FBI to be an anonymous source in news reports” regarding an FBI investigation concerning PERSON 1.
2. That statement was false, because, as JAMES B. COMEY JR. 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.
That’s it. That’s the whole of Count One, alleging false statements within the jurisdiction of the legislative branch under 18 U.S.C. 1001(a)(2). A source told CNN that this is related to “Arctic Haze,” an FBI investigation into leaks that ultimately appeared in four news articles.
As short as it is, Count One is positively voluminous when compared to Count Two:
4. On or about September 30, 2020, in the Eastern District of Virginia, the defendant, JAMES B. COMEY JR. did corruptly endeavor to influence, obstruct and impede the due and proper exercise of the power of inquiry under which an investigation was being had before the Senate Judiciary Committee by making false and misleading statements before that committee.
That’s all you — and James Comey — get to know about the justification for alleging he obstructed a congressional investigation, violating 18 U.S.C. 1505.
Halligan failed to secure a charge on a third count, but you can see what she tried for in the report of a Grand Jury’s Failure to Concur in an Indictment. Maybe the reason she didn’t succeed is that this thing is positively incoherent:
On or about September 30, 2020, in the Eastern District of Virginia, the defendant, JAMES B. COMEY JR., did willfully and knowingly make a materially false, fictitious, and fraudulent statement in a matter within the jurisdiction of the legislative branch of the Government of the United States, by falsely stating to a U.S. Senator during a Senate Judiciary Committee hearing that he, JAMES B. COMEY JR., did not remember “being taught” of PERSON 1’s “approval of a plan concerning” PERSON 2 and the 2016 U.S. Presidential election.
What?? Near as anyone can figure, this was about the conspiracy theory that Hillary Clinton (PERSON 1) approved of some plan concerning Trump (PERSON 2) to have Russian hackers disrupt the election to distract everyone from her private email server use, and that Comey knew about it.
Now, having an indictment this short and detail-free isn’t illegal or inherently unethical. But it is downright weird, particularly in a blockbuster case indicting a former FBI director for lying to Congress.
If you want to see what an indictment actually looks like in these sorts of cases, peep former Special Counsel Jack Smith’s 49-page filing in the Trump classified documents case or his 45-page filing in the January 6 case.
Those documents have lengthy narratives about Trump’s conduct — as in dozens and dozens of paragraphs — presented in a way that supports every element of each charge. Where relevant, the indictments quote Trump at length. If you read them, you can get a complete, detailed picture of the charges against Trump.
Now, you might be thinking, “well, sure, those indictments were lengthy and bulletproof because they had to be to charge Trump, but what about charging a normie criminal?” Here’s a recent indictment in a wire and bank fraud case in the same federal district, from the same US attorney’s office. It’s 14 pages and contains a narrative about the alleged criminal behavior with topical subheadings and explanations of how the behavior violated the relevant laws. Here’s another 24-page one for securities fraud, complete with an overview of the applicable securities reporting laws.
None of this is normal
Ultimately, it doesn’t really matter what the indictment says, because Halligan was going to indict Comey no matter what. That’s literally why she’s in the job — to bring the sort of sham charges that the previous US attorney, Eric Siebert, would not.
Siebert told senior DOJ officials there was not enough evidence to charge New York Attorney General Letitia James with mortgage fraud and that he had concerns about any case against Comey. Siebert resigned, though Trump insists he was fired. But the specifics don’t really doesn’t matter. In the end, Siebert was out because he wouldn’t do precisely what Halligan would do.
Halligan isn’t just malleable and unethical. She also has no idea what she’s doing, having never prosecuted a single case. She was an insurance lawyer before Trump plucked her out of obscurity in Florida to be one of his defense lawyers in the classified documents case. Halligan also appears to still work for the White House as Special Assistant to the President and Senior Associate Staff Attorney, where she has been in charge of making sure that the Smithsonian and other museums don’t have anything that bums white supremacists out, like mentions of slavery.
The indictment came just a few days after President Trump went on Truth Social to demand that Attorney General Bondi get cracking on prosecuting his enemies and fired the US attorney who wouldn’t bring sham charges. There’s no separation between the Department of Justice and Trump’s desire for retribution.
However, because, as political science professor Mark Copelovitch puts it, “performative public lying is a hallmark of far right authoritarian parties,” both Trump and Bondi are pretending that this is a run-of-the-mill prosecution as opposed to yet another stop on Trump’s vengeance tour.
When asked to comment on whether Comey would be indicted approximately six hours before it happened, Trump said, “I think I’d be allowed to get involved if I want, but I don’t really choose to do so. I can only say that Comey is a bad person. He’s a sick person. I think he’s a sick guy, actually. He did terrible things at the FBI. And — but I don’t know. I have no idea what’s going to happen.”
Buddy, you literally called for the prosecution of your enemies on your social media site, fired the person who wouldn’t do it, and installed someone who would. There’s no world where you’re not knee deep in it.
Pam Bondi went on X to claim, preposterously, that “no one is above the law” and that the indictment reflects the DOJ’s “commitment to holding those who abuse positions of power accountable for misleading the American people. We will follow the facts in this case.”
Okay, well, your boss’s stance is that he literally is above the law, so that part is laughable. And the thing about following the facts — what facts? Halligan didn’t see fit to include any of them in the indictment. I guess we’ll all follow the facts whenever Halligan gets around to sharing.
Not that it would matter. The clock was ticking on the five year statute of limitations, set to expire in just a few days, and Halligan needed to charge Comey with something, anything, to make Trump happy. As Lawfare explained, charging Comey with lying during his September 30, 2020, testimony was likely appealing because “it might just be possible to slap together a simple false statements case and get it in under the wire.”
That appears to be exactly what Halligan did, though likely no one expected this indictment to be quite this thin. But what was Halligan to do when all the actual prosecutors in her office sent her a memo saying there was no probable cause to get an indictment, much less a guilty verdict? Apparently she took matters into her own hands to write a two-page masterpiece. Indeed, she’s the only person who signed the indictment, an odd move given that most criminal indictments are signed by the career prosecutors handling the case, along with the US attorney for the district.
Those career prosecutors are absolutely right to refuse to sign this thing. The court can sanction lawyers for signing an indictment they know isn’t supported by the facts. They can also face ethical complaints in the states where they are admitted to practice law, which can result in everything from a slap on the wrist to disbarment.
And here’s the thing: Trump can’t make those bar complaints go away. Attorneys are admitted — and regulated — at the state level, where Trump has no power. So, several of Trump’s former personal attorneys are no longer practicing law because they’ve been disciplined by their state bars.
Trump couldn’t get Rudy Giuliani out from under being disbarred in both New York and Washington DC. John Eastman, who helped come up with the fake electors scheme and pressured Mike Pence to refuse to certify Joe Biden’s victory, is still fighting the California state bar’s recommendation that he be disbarred. In June, a California court upheld the hearing judge’s disbarment decision. Eastman can still go to the California Supreme Court over this, but it’s highly unlikely he’ll get a different result. Kenneth Chesebro, also part of the fake electors plot, was disbarred in New York.
The DC Bar has recommended that Jeffrey Clark be disbarred for his efforts while at the DOJ to get senior DOJ officials to issue a false statement saying there was significant fraud in the 2020 election. Meanwhile, Jenna Ellis got off comparatively easy by entering into a voluntary agreement with the Colorado bar for a three-year suspension for making false statements about the 2020 election.
Lindsey Halligan isn’t immune to ethics complaints to the state bar(s) to which she is admitted, which appears to be only Florida at this time. The career prosecutors in the Eastern District of Virginia also aren’t immune to ethics complaints to the state bar, which is why they were smart enough to refuse to sign this sham indictment. Halligan is probably on her own here, but she’s already proven more than willing to do whatever Trump says, so you can expect to see more of this sort of fact-free, ethically-compromised indictment as Trump works through his enemies list.
That’s it for today
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I wonder how many different grand juries were empaneled to finally get this indictment.
And this in that context that getting an indictment occurs in 90 to 95 percent of the time.
Why does EDVA have jurisdiction and not DC? Was his testimony by zoom from VA and not actually in Congress?