Misconduct in the James Comey Case Stemmed From a Reckless Rush To Indict Him
A magistrate judge says the government’s missteps may warrant dismissal of the charges against the former FBI director.
When U.S. Magistrate Judge William E. Fitzpatrick blasted the Justice Department's handling of the James Comey case on Monday, he did not address the merits of the perjury and obstruction charges against the former FBI director. But the government misconduct that Fitzpatrick described was largely a product of the reckless rush to deliver the grudge-driven indictment that President Donald Trump demanded.
"We can't delay any longer," Trump told Attorney General Pam Bondi on September 20. "JUSTICE MUST BE SERVED, NOW!!!"
Why the hurry? Since the charges against Comey stem from his congressional testimony on September 30, 2020, they would have been barred by the five-year statute of limitations within 10 days of Trump's message to Bondi.
The Justice Department nearly missed that deadline because Erik Siebert, the U.S. attorney for the Eastern District of Virginia until September 19, did not think the case was worth pursuing. Nor did the career prosecutors in his office.
Trump himself had nominated Siebert as U.S. attorney. But Siebert's reluctance to prosecute Comey and another Trump nemesis, New York Attorney General Letitia James, drove the president to replace him with Lindsey Halligan, a former Trump defense attorney with no prosecutorial experience.
Halligan's main qualification for the job was her willingness to overlook the legal and empirical difficulties that had deterred her predecessor. She took office two days after Trump demanded action against Comey and obtained the indictment three days later.
Halligan alone signed the indictment, which reflected internal skepticism about the case. The two-page document was so vague and skimpy that the details of the charges remained unclear for more than a month.
Halligan claims Comey tried to conceal his P.R. collaboration with Columbia law professor Daniel Richman, a longtime friend, in rebutting criticism of his decisions regarding the FBI investigation of Hillary Clinton's email practices as secretary of state. Richman repeatedly defended Comey's handling of the Clinton investigation in conversations with journalists, both on and off the record, to the point that a sympathetic 2017 article in The New Yorker described him as "a close friend of Comey who has served as his unofficial media surrogate."
Halligan alleges that Comey lied to the Senate Judiciary Committee when he reaffirmed his earlier testimony that he had never "authorized someone else at the FBI to be an anonymous source in news reports" about "the Clinton investigation." Halligan says Richman qualified as "someone else at the FBI" because, in addition to his full-time, paying gig at Columbia, he served the bureau as an unpaid "special government employee" during Comey's tenure there.
To convict Comey, prosecutors would have to prove beyond a reasonable doubt that he understood "someone else at the FBI" to include Richman. They also would have to prove that Comey deliberately tried to mislead the senators about his well-known relationship with Richman, at least to the extent that it included "background" discussions with reporters.
In their haste to shore up that shaky case before it was too late, Fitzpatrick found, FBI agents took shortcuts that cast doubt on the indictment's validity, delving into communications that the FBI had obtained during a prior investigation of Richman that was closed without criminal charges. Although that investigation involved a different target and different allegations, the FBI did not obtain a new warrant specific to the case against Comey, which would have excluded irrelevant evidence, or properly filter out potentially privileged material.
Fitzpatrick also noted the procedural uncertainty created by Halligan's presentation of two contradictory indictments. And he found that she misled the grand jurors on two important points of law, implying that they could assume probable cause based on evidence she had not presented and that Comey would have the burden of proving his innocence.
These missteps, which Fitzpatrick said might prove serious enough to require dismissal of the indictment, did not happen in a vacuum. They were the consequences of Trump's determination to get Comey, regardless of the facts or the law.
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