The Comey Indictment

A point that I have repeatedly stressed in these blog posts is that cult leader, convicted felon, and failed President Donald Trump is an authoritarian who wants to rule the United States as a dictator. Yesterday, there were two more examples of his intent to implement this goal. The first was the indictment on two felony charges of former Director of the Federal Bureau of Investigation, James Comey. The second was a Presidential Memorandum Trump issued titled, "Countering Domestic Terrorism and Organized Political Violence". Both demonstrate how Trump intends to use the power of the state to harass, punish, and suppress his political opponents. Today, I will discuss the Comey indictment and address the memorandum in a subsequent post.

I have provided some of the background to the Comey indictment in an earlier blog post. But just to refresh, Trump has consistently made threats to punish his political enemies. It is ironic that Comey has been among Trump's most frequent targets because Comey could arguably be said to have been the key factor in getting Trump elected in 2016. Nevertheless, because of Comey's involvement in the Russia probe and Comey's well-documented refusal to pledge loyalty to Trump, Trump has had it in for him. Six days ago, Trump posted a "truth" on his Truth Social social media network that may have been meant as a private message. Addressed to "Pam," clearly U.S. Attorney General Pam Bondi, the message complained that "[n]othing is being done. What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done." Comey had been under investigation by the Eastern District of Virginia's U.S. Attorney, but that prosecutor, Erik S. Siebert, had been unable to find sufficient grounds to seek an indictment. Trump was infuriated with Siebert, and Siebert had resigned the day before Trump's "truth". Trump, however, claimed that he had fired Siebert because Siebert was a "Woke RINO, who was never going to do his job." In Siebert's place, Trump put Lindsey Halligan, a former insurance lawyer who had never prosecuted a case but had been part of Trump's defense team in his classified documents case. Halligan was fully aware that she had one job, and that job was to indict Comey (and probably New York Attorney General Letitia James as well).

Yesterday, Halligan successfully obtained a grand jury indictment on two felony charges. The grand jury refused to return an indictment on a third count. The first count that was returned was a charge of making a false statement to a U.S. Senate committee. The indictment is as sparse as it could be, and as a result, it is not possible to know precisely what false statement Comey was accused of making. We know that it occurred "on or about September 30, 2020" and that it involved Comey's assertion that he had not "authorized someone else at the FBI to be an anonymous source in news reports" regarding an investigation into Person 1. This quoted language comes directly from a question posed to Comey by Republican Senator Charles Grassley in 2017. However, in 2020, Comey stood by that testimony in response to a question by Republican Senator Ted Cruz. If "Person 1" is Trump, then "Person 2" who is referenced later in the count could be former FBI Deputy Director Andrew McCabe. However, despite Cruz's question which misstated earlier testimony by McCabe, neither McCabe nor Comey has suggested that Comey authorized leaks by McCabe. A Department of Justice Inspector General investigation cleared Comey of authorizing McCabe to leak. If this is what Halligan is charging, Comey will have an easy victory.

A second possibility is that "Person 2" is Daniel Richman, a close friend of Comey's who briefly served as a Special Government Employee for the FBI and is currently a Columbia University Law School professor. I want to acknowledge the reporting of Benjamin Wittes and Anna Bower of Lawfare, whose articles and social media posts I have relied on for much of the information I am providing here. Richmond came up in earlier investigations because Comey authorized him to provide the media with memos that Comey wrote following meetings with Trump. However, those memos were not classified, and Richmond's provision of them to the media would not lead to this charge. However, at the time that Richmond passed the memos to the media, the Trump administration launched an investigation into what it considered to be a leak. As the New York Times reported in 2021, the focus of the investigation, which was code-named "Arctic Haze," "was said to evolve over time, as investigators shifted from scrutinizing whether they could charge Mr. Comey with a crime for disclosing his conversations with Mr. Trump to whether he had anything to do with the disclosure of the existence of the document." FBI Director Kash Patel recently declassified documents related to Arctic Haze, and right-wingers have been running wild with misleading allegations that the documents provide a smoking gun. Much of what is covered in these documents was already publicly known. It has been well-established, for instance, that Richman often acted as a conduit to the press for Comey. That was precisely Richman's role with regard to the Comey memos. However, Richman generally spoke on the record, and his name frequently comes up in news articles. Of issue is whether he ever leaked classified information and, more importantly, whether he had been authorized by Comey to do so. In the documents released by Patel, Richman repeatedly denies both of these allegations. The Arctic Haze investigation was closed in 2021 without anyone being charged.

Count 2 of the indictment is "Obstruction of a Congressional proceeding" which Comey is alleged to have done "by making false and misleading statements". Again, the statements (note the plural) are not identified but presumably more than the statement referenced in Count 1. Benjamin Wittes suggests that this count may be related to the so-called "Durham Annex" which was recently released by Senator Grassley. In transcripts included with this release, Comey denied knowledge of a document that Senator Lindsey Graham brought to his attention. However, as Wittes and Bower explain, Comey probably had seen the document but simply didn't recognize it from Graham's description.

One thing to keep in mind is that Trump has been demanding an indictment, not necessarily a conviction. For autocrats like Trump, an indictment is a victory in and of itself. Even if innocent, Comey will now be tied up in court. He will have to devote time and a considerable sum of money to defending himself. In the meantime, MAGA cult members will be doing victory laps proclaiming Comey guilty and soon to face justice. The indictment will invigorate MAGA supporters and lend credence to the allegation that Trump has been victimized by a supposed "deep state". The indictment could very likely have a chilling effect on other Trump critics who also may fear being the target of trumped-up charges.

As for Comey, he probably has the strongest vindictive prosecution defense in the history of vindictive prosecution defenses. Trump's own words make that an open and shut case. However, Comey may choose to defend himself in court where he also has a very likely chance of winning. Remember that leak allegations tied to Comey were investigated by DOJ IG Michael Horowitz, the FBI in Arctic Haze, and then U.S. Attorney Siebert. None of them found grounds for charges. We can assume that Halligan's case is very weak and all evidence so far supports that assumption. It is notable that Halligan herself signed the indictment, suggesting that none of the professionals employed in her office were willing to do so.

Trump has little concern about reality, instead creating illusions that he and his cult followers believe. What is an extremely weak indictment of Comey will be portrayed as evidence of Comey's guilt. While that will play well in MAGA land, it is not clear what impact it will have in the wider world. Some may well be intimidated — our elites have been shown to be an extremely timid bunch. But, to many, this is little more than Trump having a tantrum and actually a sign of weakness. The fact that Trump had to rely on an inexperienced sycophant to get an indictment that professional prosecutors refused to pursue is not the sign of someone with strength, but rather an indication that someone is little more than a bully.