United States v. Comey: What to Watch For
Thinking about the perjury prosecution of former FBI Director James Comey in the United States District Court for the Eastern District of Virginia
Alexandria hosts many interesting events, but the federal prosecution of former FBI Director James B. Comey, Jr. in the Albert V. Bryan U.S. Courthouse on Courthouse Square promises to be especially compelling.
The terse two count September 25 indictment of Comey for lying to Congress and obstructing a congressional proceeding can be seen
Lawyers call the United States District Court for the Eastern District of Virginia “rocket docket” because it is one of the most efficient federal district courts in the nation. Consistent with that reputation, Judge Michael Nachmanoff set a January 5 trial date in the Comey case.
There have been extensive media accounts of Comey’s prosecution by newly appointed and modestly experienced Interim United States Attorney Lindsey Halligan shortly before the expiration of the statute of limitations. The indictment was filed shortly after social media posts from President Donald Trump encouraged or directed Attorney General Pam Bondi to prosecute Comey. Experienced prosecutors, including former United States Attorney of the Eastern District of Virginia Erik Siebert, declined to prosecute Comey.
What follows is a preview, with a minimum of legal mumbo jumbo, of some of the issues in the Comey prosecution.
Comey’s Motion to Dismiss the Indictment
On October 20, Comey’s lead counsel, Patrick Fitzgerald, filed a motion to dismiss the indictment with a 51-page supporting memorandum that can be viewed
The memorandum contains a detailed history of the contentious Trump-Comey relationship, including accounts of occasions on which Comey has been investigated and not charged with lying to Congress. The memorandum argues that the indictment must be dismissed because the government has prosecuted Comey vindictively and selectively—the terms are not interchangeable.
Is the Indictment Flawed on Its Face?
The memorandum in support of Comey’s motion to dismiss, at page 16, asserts that, “the indictment presents an inaccurate description of the testimony at the heart of this case.” Comey’s lawyers argue that the indictment mischaracterizes Comey’s congressional testimony and misleadingly attributes statements to him:
The indictment misstates the exchange between Senator Cruz and Mr. Comey. Senator Cruz asked Mr. Comey to affirm or deny prior testimony that he authorized “someone else at the FBI to be an anonymous source in news reports about . . . the Clinton Administration.” But Hillary Clinton was not elected, and Senator Grassley’s original questioning in 2017 related to the “Clinton investigation.” See FBI Oversight Transcript at 5, Exhibit B. The indictment nonetheless mischaracterizes Mr. Comey as stating that he “had not ‘authorized someone else at the FBI to be an anonymous source in news reports’ regarding an FBI investigation concerning PERSON 1,” ECF No. 1 at 1 (emphasis added). Thus, the indictment replaces Senator Cruz’s reference to the “Clinton Administration” with a reference to “PERSON 1” (Hillary Clinton) and misleadingly attributes statements to Mr. Comey that he did not in fact make during his September 30, 2020, testimony. (p. 15)
Thus, the indictment accuses Comey of lying to Congress on September 30, 2020 by citing testimony that he gave in 2017 that was not, and could not have been, responsive to the questions he was asked on September 30, 2020.
Vindictive Prosecution: What Must Be Shown
Vindictive prosecution occurs when a prosecutor penalizes a defendant for having exercised his legal rights. The Supreme Court said in Bordenkircher v. Hayes that to punish someone “because he has done what the law plainly allows him to do is a due process violation of the most basic sort.” A vindictive prosecution requires a defendant to (a) prove that a prosecutor charged a defendant to retaliate against the person for exercising his legal rights or (b) show facts sufficient to create a “realistic likelihood of vindictiveness,” which creates a presumption the government must then rebut by justifying its charging decision.
Comey’s vindictive prosecution argument asserts that vindictiveness by the prosecutors themselves need not be shown and that President Trump’s ill will or vindictiveness toward Comey is enough. The memorandum asserts:
A claim of vindictive prosecution in this case does not depend on a showing that Ms. Halligan herself harbors “genuine animus toward” Mr. Comey. Wilson, 262 F.3d at 314. Rather, the claim turns on the animus harbored by the official who prompted the prosecution—here, the President—revealed in repeated expressions of malice, which he translated into action by installing and then “prevail[ing] upon [Ms. Halligan] to bring the charges . . . such that [she] could be considered a ‘stalking horse.’” Sanders, 211 F.3d at 717; see United States v. Monsoor,77 F.3d 1031, 1035 (7th Cir. 1996) (where an outside party “in some way prevail[s] upon the prosecutor in making the decision to seek an indictment,” the “ill will, whoever its bearer,” may be “imputed to federal prosecutors”). (pp.21-22)
Selective Prosecution: What Must Be Shown
All prosecutions are selective—prosecutors have broad authority over charging decisions. A motion to dismiss based on selective prosecution requires a defendant to show that a broader class of persons than those prosecuted has violated the law, that failure to prosecute was either consistent or deliberate, and that the decision not to prosecute was based on an impermissible classification such as race, religion, or sex.
In other words, for a motion to dismiss based on selective prosecution to be granted, Comey would have to show that lying to Congress occurs frequently and that the decision not to prosecute the offense was based on a prohibited classification. To obtain a dismissal, a defendant must provide “clear evidence” that the Government’s enforcement technique had a discriminatory effect and that it was motivated by a discriminatory purpose.
To deem the Comey case a vindictive or selective prosecution would essentially involve a finding by the judge that the prosecutors abandoned their prosecutorial discretion and became order-takers. Judge Nachmanoff may ultimately find that a fact issue relevant to the vindictive and selective prosecution defenses—the intent of the prosecutors—must be decided by the jury.
Judge Nachmanoff has given the government until November 3 to respond to Comey’s motion to dismiss.
What Will the Government Produce as Brady Exculpatory Material?
Brady v. Maryland is a fundamental case in criminal law. Brady obligates the prosecution to turn over potentially exculpatory evidence to the defense. The essence of Brady is that the government’s withholding of evidence that is material to the determination of guilt or punishment of a criminal defendant violates the defendant’s constitutional right to due process.
A former prosecutor wrote me:
There are some interesting issues about what the government may have to disclose. There’s Brady material which is evidence favorable to the defendant…the court will want such evidence produced early on. Often the court will set a date by which all Brady material must be disclosed by the government.
And ordinarily a defendant wouldn’t be entitled to receive internal communications between lawyers in the US Attorney’s Office with each other and with the president. Here, however, those communications may be relevant to the vindictive prosecution defense. If senior attorneys assigned to prosecute the case declined to do so because they said the evidence didn’t warrant prosecution this would support the vindictive prosecution defense. The case isn’t being brought on its merits but rather to satisfy the president’s desire for retribution. Anything the president said about wanting the case prosecuted regardless of the line attorneys’ conclusions would be Brady [material.]
We do not know how, or whether, the prosecution will fulfill its Brady obligations as to currently undisclosed communications about the Comey case among the White House, Justice Department officials, and lawyers in the office of the United States Attorney for the Eastern District of Virginia. [1]
However, it seems possible that Comey’s vindictive prosecution defense may require the government to disclose more than we know now about the decision to prosecute Comey just prior to the expiration of the statute of limitations.
Could those potential disclosures be embarrassing enough to cause the government to dismiss Comey’s prosecution? Not likely, but the combination of the prosecution’s Brady obligations and the vindictive and selective prosecution defenses creates a situation where the government may be legally required to make uncomfortable disclosures.
Was Interim United States Attorney Lindsey Halligan Validly Appointed?
Comey’s defense team has moved dismiss the indictment on the basis that Interim United States Attorney Lindsey Halligan was not validly appointed. Judge Nachmanoff has indicated that this motion will be heard by a judge from another district.
The statute governing the appointment of United States attorneys, 28 USC 546, can be seen
The heart of the defense’s argument is that the statute does not permit the appointment of more than one Interim United States Attorney. Erik Siebert, who was fired, had already served a full 120-day term as Interim U.S. Attorney. After an interim appointment has expired, Section (d) of 28 USC 546 vests the authority to make a second interim appointment in the district court.
The memorandum in support of Comey’s motion to dismiss asserts, at page 12:
Because Mr. Siebert had previously been appointed under Section 546(a) and more than 120 days had elapsed since that appointment, the Attorney General lacked authority to appoint Ms. Halligan under Section 546.
The government may argue that how Halligan was appointed is immaterial because of President Trump’s plenary, or expansive, authority over all Executive Branch activities. Trump said as much in a September 20 Truth Social post. [2]
Halligan was the only government lawyer to sign the indictment. An Alexandria lawyer friend points out that if Judge Nachmanoff rules that Halligan was not validly appointed, this ruling will trigger another question. Was the statute of limitations, which was about to run out, tolled or suspended during the period that Halligan purported to act as the United States Attorney? If the answer is “no,” then the case against Comey for his testimony before Congress on September 30, 2025 may fail.
What is the Evidence Against Comey and Who Will Testify for the Prosecution?
The most interesting aspect of the Comey case may be the nature of the government’s evidence, and who will testify, in the prosecution’s case. There are signs that an actual trial could be problematic for the government. Comey may have had this in mind when he said, on September 25, “Let’s have a trial.”
The indictment identifies the date and place of Comey alleged lying to Congress as, “on or about September 30, 2020, in the Eastern District of Virginia.” On that date, Comey testified before a Senate committee remotely from his home in Virginia.
The indictment identifies an exchange between Senator Ted Cruz (R-TX) and Comey over whether Comey authorized an information leak in an investigation of former Secretary of State Hillary Clinton. The key aspects of Comey’s testimony can be seen in this clip; Cruz’s questioning about Comey’s authorization of a leak begins at 6:30.
Cruz tried to establish that either former Deputy FBI Director Andrew McCabe had lied, or that Comey lied when he denied leaking information to the media in 2017 testimony to Congress. Cruz asked Comey:
Now, as you know, Mr. McCabe who works 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 testified that while he would not characterize McCabe’s testimony, his testimony—that he did not authorize an information leak—was the same in 2020 as it was in 2017.
The trap that Cruz tried to spring on Comey works only if McCabe’s testimony, as Cruz characterizes it, is provably true or Comey’s testimony is provably false. A perjury prosecution usually requires evidence that testimony under oath is proven false by the defendant’s other statements or conduct. This creates a prosecutor’s dream question, “Were you lying then or are you lying now?” Cruz’s question to Comey was and is different because it relies on evidence from McCabe. Lawyers call this type of case a swearing contest.
If the Cruz-Comey exchange is essential to the government’s case against Comey the prosecution has to decide whether to call McCabe as a witness. McCabe is not a friend of the Trump Administration. How will the prosecution elevate what seems to be, at best, a conflict in the evidence into proof beyond a reasonable doubt that Comey lied to Congress?
We do not know whether McCabe will testify, or what he will say, in Comey’s trial. However, the Justice Department’s Inspector General found that McCabe violated department policy and “lacked candor” when he was interviewed about whether he was the source for two news articles pertaining to the FBI in 2016.
At the very least, if the government calls McCabe as a witness it will rely on a witness with credibility issues in a case where to convict the jury has to find, beyond a reasonable doubt, that Comey intended to lie to Congress.
And, if McCabe testifies at trial Comey’s lawyers may not have to attack his credibility. McCabe might testify in a way that reconciles the apparent conflict between his testimony and Comey’s. For example, McCabe could say that he told Comey that he (McCabe) leaked information after the fact, meaning that Comey could not have authorized a leak prior to it occurring.
The government’s case against Comey may involve more than the Cruz-Comey exchange. The identity of the government’s witnesses is an interesting and open question, as is what else Comey could have lied to Congress about, in the words of the indictment, “on or about September 30, 2020 in the Eastern District of Virginia.”
Who Will Testify for the Defense?
Comey, of course, is under no obligation to testify at trial. The defense’s vindictive and selective prosecution defenses may create an opportunity to compel trial testimony by issuing subpoenas to, for example, former U.S. Attorney Erik Siebert or other career prosecutors who declined to prosecute Comey, or Attorney General Pam Bondi, or (brace yourself) President Donald Trump.
In short, the witness lists for the prosecution and the defense in United States v. Comey will reveal some interesting choices.
A Few Final Thoughts
There will undoubtedly be surprises in the Comey case. The evidence against Comey may turn out to be different from what it seems to be now. For these and other reasons, the Comey case is worth watching.
Ultimately, the Comey case may show what a federal criminal prosecution looks like when the case was filed not to obtain a conviction, but rather to inflict costs on the defendant in time, money and reputation.
Your comments are very welcome.
[1] For reference, here is President Trump’s September 20 Truth Social post:
Pam: I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.” Then we almost put in a Democrat supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so. Lindsey Halligan is a really good lawyer, and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT
[2] It is my honor to appoint Lindsey Halligan, who has been serving as Special Assistant to the President at the White House, as United States Attorney for the Eastern District of Virginia. Lindsey is a tough, smart, and loyal attorney, who has worked with me for a long time, including in the winning fight against the Weaponization of our Justice System by Crooked Joe Biden and the Radical Left Democrats, which she witnessed firsthand when she stood up for my rights during the Unconstitutional and UnAmerican raid on my home, Mar-a-Lago, in Palm Beach, Florida. As a Partner at the biggest Law Firm in Florida, Lindsey proved herself to be a tremendous trial lawyer, and later represented me (and WON!) in the disgraceful Democrat Documents Hoax, as well as MANY other major, high profile cases. She is extremely intelligent, fearless and, working with Attorney General Pam Bondi and Deputy Attorney General Todd Blanche, has the strength and determination to be absolutely OUTSTANDING in this new and very important role. Congratulations, Lindsey - You will do GREAT things for JUSTICE, Virginia, and our Country! Thank you for your attention to this matter. MAKE AMERICA GREAT AGAIN!\
Special thanks to David Logan and Rob Dunn for assistance with this post.
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This is the clearest and most comprehensive summary of the case and the issues that it raises that I've read. And it's unfolding right in our backyard!
Thanks for the interesting read, Mr. Eaton