The Justice Department's 3rd Attempt To Imprison James Comey Stinks of Trump's Desperation for Revenge
Prosecutors allege that the former FBI director illegally disclosed classified information in 2016—an incident that was investigated twice without resulting in charges.
A little more than a year ago, President Donald Trump publicly demanded that Pam Bondi, then the attorney general, find a crime to pin on former FBI Director James Comey. Trump's underlings have repeatedly tried to do that, first charging Comey with lying to Congress and then accusing him of threatening to assassinate the president. But the first indictment was dismissed because Trump had illegally appointed the prosecutor who obtained it, and the second was doomed right out of the gate because it aimed to punish constitutionally protected political speech.
The Justice Department's latest attempt to follow Trump's marching orders was revealed on Monday, when U.S. District Judge Trevor McFadden unsealed a "criminal information" that claims Comey illegally shared classified information with The New York Times on October 5, 2016. In an attempt to meet the statutory deadline for that charge, prosecutors filed it exactly 10 years after the alleged disclosure. But Comey's lawyers argue that federal law required the government to obtain a grand jury indictment within 10 years of the alleged offense, which it failed to do.
Whatever you make of that dispute, the president has made it clear that he wants to imprison Comey, a longtime nemesis because of his role in the "Russiagate hoax" during Trump's first term, and does not much care about exactly how that happens. Justice Department officials, meanwhile, are keen to pursue Trump's personal vendetta by using their prosecutorial powers as an instrument of his revenge.
The new case "would almost be funny if it weren't such an appalling abuse of the Department of Justice," Comey said in an online video on Monday. "I'm still innocent. I'm still not afraid of these people, and I still believe in the independent federal judiciary."
In the New York Times story at the center of the case, Charlie Savage and Nicole Perloth reported that Yahoo had adapted "a system intended to scan emails for child pornography" to comply with a Foreign Intelligence Surveillance Court order seeking "messages containing a computer 'signature' tied to the communications of a state-sponsored terrorist organization." Savage and Perloth cited "two government officials who spoke on the condition of anonymity."
Dustin Farahnak, a special U.S. attorney for the District of Columbia, says that story included "first-time disclosures of classified information not intended for the public domain." According to Farahnak, the government has evidence that Comey "directed staff" to discuss "specific accuracy concerns" about a prior Reuters report on the same subject with Savage. In the process of doing that, Farahnak says, those FBI officials "illegally transferred classified information."
Comey's attempt to set the record straight, according to Trump's henchmen, was a felony punishable by up to 10 years in prison under 18 USC 793(d), an Espionage Act provision that applies to an official who "willfully" shares "information relating to the national defense" with an unauthorized recipient when he "has reason to believe" it "could be used to the injury of the United States." Comey also faces a charge of conspiring to violate Section 793, which likewise carries a maximum 10-year sentence.
If Comey's alleged disclosure was such a grave crime, you might wonder, why did it take a decade to charge him? Because two prior investigations of the same incident concluded that criminal charges were not warranted.
Beginning in March 2017, John Durham, the U.S. attorney for the District of Connecticut, looked into the genesis of the Times article. The investigation found that James Baker, then the FBI's general counsel, was one of the anonymous sources. Baker said he had acted under instructions from FBI Chief of Staff James Rybacki, whom he understood to be conveying Comey's wishes. Durham's investigation included interviews, emails, phone records, and consideration of the relevant statutes. In December 2018, Comey's lawyers note, Durham "wrote a classified memorandum outlining the investigation and recommending 'NO prosecution for Baker or anyone else.'"
The following month, the U.S. Attorney's Office for the District of Columbia "opened an investigation into the same subject matter," Comey's lawyers say. That investigation "was closed without any charges in February 2020" after the office "declined to prosecute."
Given the outcomes of those two investigations, the decision to charge Comey now stinks of desperation to slake Trump's thirst for revenge. According to Comey's lawyers, the tardiness of the charges also fatally undermines the case.
Federal law generally requires that prosecutors file charges within five years of the alleged crime. But the Internal Security Act of 1950 made an exception for Section 793, saying "an indictment for any violation" of that provision "may be found at any time within ten years next after such violation shall have been committed."
The charges against Comey "should be dismissed as time barred," his lawyers argue: "Section 19 of the Internal Security Act gives the government an extended ten-year limitations period in which to charge Section 793 offenses. But as Section 19 unambiguously states, the government may invoke that extended period only by obtaining a grand jury indictment. A criminal information—which the government can issue unilaterally without grand jury involvement—does not suffice. Because the default five-year statute of limitations for federal felonies has long since elapsed on the alleged offenses, and the government's information does not meet the express statutory requirement for an extended ten-year limitations period, the information is untimely and must be dismissed."
Whichever side prevails on that issue, no one should have any illusions that the Justice Department is pursuing the mission suggested by its name. "It remains unclear what [McFadden] will do with the matter and whether DOJ will even be able to secure an indictment—as required by the Constitution," Cato Institute legal fellow Mike Fox says in an emailed press release. "Should the matter proceed, it is unequivocally clear that this case is a vindictive prosecution—a classic case of lawfare by a weaponized Justice Department."
