For years, Donald Trump has demanded that criminal charges be filed against former FBI Director James Comey. Now the president has gotten what he wanted. Yesterday evening, well after the federal courts usually close their doors, a grand jury in Virginia handed up an indictment alleging that Comey lied when testifying before Congress in September 2020. The news was first announced (how else?) in a post on X by the Trump ally Laura Loomer.
The charges represent a dangerous step in Trump’s attempt to further consolidate power, while also being a total farce and a potentially historic embarrassment. They are not even about the FBI’s investigation of Russian election interference in 2016, Trump’s main grievance against Comey and the original sin, in the president’s mind, of the “deep state.” But those events were outside the statute of limitations, so instead the charges focus on an unrelated dispute concerning whether or not Comey authorized FBI officials to speak anonymously to the press before Trump fired him in May 2017. The whole case will depend on prosecutors’ ability to show that Comey was intentionally lying when answering confusing questions from Republican senators about a dustup that had taken place more than three years earlier. And it’s not even clear that Comey’s response before Congress was factually wrong.
The Justice Department should never have brought such an astoundingly shoddy case. The decision to do so, under intense pressure from the president to harass his old enemy, is an indication of how thoroughly Trump has been able to corrupt the department.Trump seemingly wanted the Justice Department to find something, anything, to pin on the former FBI director, and he doesn’t appear to care much about the actual charges—or even whether the case holds up in court. “JUSTICE MUST BE SERVED, NOW!!!” he posted last weekend, later telling reporters that prosecutors “have to act fast.” The 2020 congressional testimony will edge past the five-year statute-of-limitations mark next Tuesday. In any other political moment, this would be obviously impeachable conduct.
This is not, it should be said, how the department has typically liked to do things. After Watergate, the DOJ built up an edifice meant to protect the rule of law and prosecutorial independence from a president’s interference. But all that seems to have come crashing down.
Over the past week, the Justice Department’s internal struggles poured out into the open with a stream of news reports about the unwillingness of prosecutors to take this step for Trump. Last Friday, Erik Siebert, the acting U.S. attorney for the Eastern District of Virginia, left the department after Trump declared to reporters: “I want him out.” Siebert had reportedly concluded that the potential charges against Comey, along with the mortgage-fraud claims that Trump has alleged against New York Attorney General Letitia James, were too weak to file in court.
Trump then replaced Siebert with Lindsey Halligan, a Florida insurance lawyer with no prosecutorial experience whose previous responsibilities in the administration involved working to expunge “improper ideology” from the Smithsonian. Halligan, according to ABC, decided to move forward with the charges against Comey even after receiving a “detailed” internal memo from prosecutors explaining why they believed there was no probable cause to secure an indictment. Even Attorney General Pam Bondi, who has otherwise been an enthusiastic participant in Trump’s efforts to destroy the integrity of the Justice Department, was reportedly uneasy about bringing the case.
Now that the indictment is public, it’s easy to see why. By every appearance, this is an astonishingly weak case. The charges focus on an exchange between Comey and Republican Senators Chuck Grassley and Ted Cruz during Comey’s 2020 testimony, where the two quizzed Comey on whether he had ever authorized any leaks to the press about the FBI’s investigations into Trump or Hillary Clinton in 2016. Comey said he had not. The indictment now alleges that he was lying. The document is sufficiently terse that it’s difficult to say what specific lie the grand jury had in mind—but as my former colleagues Anna Bower and Benjamin Wittes have examined in Lawfare, none of the possibilities makes very much sense.
One leading candidate involves a dispute between Comey and his former FBI Deputy Director Andrew McCabe about whether or not Comey was aware of McCabe’s plan to authorize press outreach concerning the FBI’s probe into the Clinton Foundation. That issue was already the subject of an investigation by the Justice Department’s Office of Inspector General, which found that McCabe’s story was less credible than Comey’s competing account. In 2019, the Justice Department even tried to bring a case against McCabe for lying to internal investigators on the matter—before dropping it, likely because a D.C. grand jury refused to indict. Now, if the charges do indeed concern the McCabe incident, the DOJ will have to argue in court that McCabe was actually telling the truth and that Comey was lying. What will happen when prosecutors call McCabe as a witness against his former boss?
It gets stranger. Halligan reportedly presented the case to the grand jury herself, an odd choice for someone with no previous background as a prosecutor. According to The Washington Post, the magistrate judge was initially handed two different indictments, one with two charges and one with three. When the court later released the indictment, it turned out that jurors had actually declined to indict Comey on one of three potential charges, while moving forward with the other two. The Post reports that Halligan initially told the judge that she was unaware of the failed three-count indictment, even though her signature was on both the two-count and the three-count version of the document.
“JUSTICE HAS BEEN SERVED!” Trump posted on Truth Social after news of the indictment broke. But as with George W. Bush’s famous announcement of Mission Accomplished, this declaration of victory may turn out to be premature. In requesting an indictment, a prosecutor needs to convince a majority of grand jurors only that the charges meet the standard of probable cause—often numericized as a 51 percent likelihood that someone committed a crime. Securing a conviction before a petit jury requires that all 12 jurors agree that the crime took place beyond a reasonable doubt. That can be especially difficult to prove in a case like this one, which hinges on the argument that Comey knew he was lying to Congress instead of misunderstanding the question or misremembering. (If, that is, Comey didn’t respond truthfully, which is far from obvious.)
And that’s assuming the case even makes it to a jury. Comey’s legal team—led by the prominent former DOJ lawyer Pat Fitzgerald—may well file what’s known as a “motion to dismiss for selective and vindictive prosecution,” which could net them all kinds of damaging evidence about what went on behind the scenes at the DOJ. Judges are typically reluctant to grant such motions. But Comey has already amassed a record to support such a motion that few defendants could dream of.
The Comey case is one among several political prosecutions that the president has been pushing for. He has also been pressuring the Justice Department to indict his former National Security Adviser John Bolton, who wrote a negative book about him, and the former CIA Director John Brennan, whom he dislikes because of Brennan’s role in the 2016 Russia investigation. (The Brennan case may be in trouble after Director of National Intelligence Tulsi Gabbard purged a number of intelligence officials whose testimony prosecutors would need to secure, The New York Times reported.) The White House has likewise backed fishy mortgage-fraud investigations into Letitia James, the Federal Reserve Board member Lisa Cook, and Democratic Senator Adam Schiff.
These actions aren’t entirely unprecedented. During Trump’s first term, he secured a handful of lower-profile indictments against a small number of political enemies. The Justice Department brought weak cases against two Democratic lawyers on one of the same charges that Comey now faces: lying to authorities. Both were acquitted.
As defendants go, Comey is well positioned. He can’t be fired (Trump already did that). He has excellent lawyers, and his wealth means that he will have no trouble paying his legal bills. He responded to the news with a short video uploaded to social media, saying, “I’m innocent. So let’s have a trial.” This calm defiance—“We will not live on our knees,” he declared—was characteristic of his Boy Scout persona. But it also marked a striking departure from the cowardice displayed by almost every other institution and figure of authority in the face of Trump’s attack on the rule of law.
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