At the center of the Trump administration’s indictment of James B. Comey, the former F.B.I. director, is testimony he delivered before Congress in September 2020. But the details of the accusation against him remain murky because the indictment is extremely sparse. It was filed by a novice prosecutor installed days ago by President Trump to lead the Eastern District of Virginia after her predecessor refused to bring the case.
Here is a closer look at the indictment that the prosecutor, Lindsey Halligan, a former personal lawyer to Mr. Trump, obtained from a grand jury, along with a proposed charge the jury rejected.
What are the charges against Mr. Comey?
The indictment charges Mr. Comey with one count of making a false statement to Congress and one count of obstructing a congressional proceeding.
The false statement charge asserts that in appearing before the Senate Judiciary Committee on Sept. 30, 2020, Mr. Comey told a U.S. senator that he “had not ‘authorized someone else at the F.B.I. to be an anonymous source in news reports’ regarding an F.B.I. investigation concerning” an unnamed person. But in fact, the indictment says, Mr. Comey had authorized someone to do so.
The obstruction charge is even vaguer. It asserts that Mr. Comey made “false and misleading statements” before the committee, but offers no details.
What is the exchange at issue?
The quotation seemingly attributed to Mr. Comey in the first charge was actually uttered by Senator Ted Cruz, Republican of Texas. That is one of several factors that makes dissecting their exchange complicated and ambiguous — an issue that could be problematic for proving to a jury that Mr. Comey not only made a false statement but also did so intentionally.
Mr. Cruz was in turn recounting an exchange at a Senate hearing on May 3, 2017. At the time, Senator Charles E. Grassley, Republican of Iowa, asked Mr. Comey whether he had “ever authorized someone else at the F.B.I. to be an anonymous source in news reports about the Trump investigation or the Clinton investigation.” Mr. Comey responded, “No.”
The 2017 exchange itself falls outside the five-year statute of limitations to charge someone with making a false statement, so Mr. Comey is being charged for saying in 2020 that he stood by having said “no” and that his testimony was “the same today.”
In context, Mr. Grassley was clearly referring to the investigation into the Trump campaign’s possible ties to Russia and to the investigation into Hillary Clinton’s use of an email server.
In his questioning three years later, Mr. Cruz slightly mangled this exchange — he said Clinton “administration” rather than “investigation” — and he shifted to discuss a leak about a different Clinton-related investigation.
Confusingly, Mr. Cruz offered what appears to have been an inaccurate account of a disagreement between Mr. Comey and his former deputy, Andrew McCabe, regarding authorization to disclose that matter. He then asked Mr. Comey two different questions — whether Mr. Comey was saying he had never authorized anyone to leak, and whether if Mr. McCabe said otherwise, that meant Mr. McCabe was lying.
Mr. Comey again replied that he could speak only for himself and stood by his earlier testimony.
What was the McCabe matter about?
In October 2016, The Wall Street Journal published an article that discussed internal disputes at the Justice Department and the F.B.I. over the investigation into the Clinton Foundation. While that investigation was publicly known at the time, the F.B.I. had not acknowledged its existence.
According to a 2018 inspector general report, a Journal reporter had called the F.B.I. and said he had heard that Mr. McCabe had shut down the inquiry because of the coming election. Mr. McCabe had an aide contact the reporter to tell him that the opposite was true. The aide recounted a phone call in August 2016 in which a Justice Department official had proposed freezing the inquiry until the election was over, and Mr. McCabe had insisted that it go forward.
Mr. McCabe had the authority to formally disclose the existence of the investigation. But the inspector general report accused him of not being candid about what happened. Among other things, Mr. McCabe told the inspector general that at a meeting after the article was published, he told Mr. Comey that he had authorized the disclosure and that Mr. Comey seemed accepting, but Mr. Comey’s recollection was that Mr. McCabe had led him to believe that he had nothing to do with it.
Mr. Trump viewed Mr. McCabe as an enemy. Days before he would have been eligible for a pension, the F.B.I. fired Mr. McCabe, accusing him of being misleading. The Trump Justice Department tried to prosecute him in 2020 for making a false statement to the inspector general, but it failed to obtain an indictment from a grand jury. Mr. McCabe in 2021 won a restoration of his pension and other benefits in a lawsuit.
Is Comey accused of lying about the McCabe leak?
This is unclear. The leak involving Mr. McCabe was the context of Mr. Cruz’s question to Mr. Comey, but there are reasons to think that would be difficult to bring a charge over. Most important, contrary to what Mr. Cruz said, the disconnect between Mr. Comey’s and Mr. McCabe’s accounts to the inspector general centered on what happened after the article was published, not on whether Mr. Comey had authorized the disclosure.
What else might it be?
It is possible that Ms. Halligan is focused on one of two other disclosures in 2017 surrounding Mr. Comey. One involved an account of conversations between Mr. Comey and Mr. Trump in January and February 2017, which The New York Times reported on after Mr. Trump fired Mr. Comey on May 9, 2017. The other involved articles that spring in The Times and The Washington Post that discussed certain Russian intelligence documents obtained by the F.B.I.
One reason to think it might be one of these is that earlier this month, prosecutors from the U.S. attorney’s office in the Eastern District of Virginia, now led by Ms. Halligan, subpoenaed Daniel C. Richman, a Columbia University law professor and friend of the former F.B.I. director, in connection with the investigation. (Mr. Richman’s statements to them were not helpful to their effort to build a case against Mr. Comey, according to two people familiar with the matter.)
In June 2017, Mr. Comey told Congress that he asked Professor Richman to provide information to a reporter about his conversations with Mr. Trump. And documents the Trump administration made public this summer show that when F.B.I. agents unsuccessfully tried to identify the source of the unauthorized disclosures of information about the Russian intelligence, they questioned Professor Richman.
Professor Richman was a “special government employee” at the F.B.I. from June 2015 until February 2017, according to an inspector general report.
What was the Trump conversation disclosure?
After Mr. Trump fired Mr. Comey, The Times published two articles recounting private conversations between the men that spring. Mr. Comey had made detailed records of those conversations in contemporaneous memos.
One involved a matter that touched on the Russia investigation. After Mr. Trump’s first national security adviser, Michael Flynn, lied to F.B.I. agents about his conversations with Russia’s ambassador and Mr. Trump fired him, Mr. Trump urged Mr. Comey to “let this go” during an Oval Office meeting on Feb. 14, 2017.
The Times has not identified its sources, but Mr. Comey himself testified to Congress in June 2017 that he had asked the professor to provide information about the conversations to a reporter. Notably, however, Professor Richman had resigned from the F.B.I. months earlier, and the question was whether Mr. Comey had authorized people “at the F.B.I.” to be an anonymous source for reporters about the Trump or Clinton inquiries.
What was the Russian intelligence disclosure?
In April 2017, The Times published an article about Mr. Comey’s much-criticized handling of the end of the Clinton email investigation, including his unilateral decision to break with Justice Department protocol by personally announcing that there was insufficient evidence to charge Mrs. Clinton with a crime.
The article reported Mr. Comey’s rationale for being the face of the announcement, rather than Attorney General Loretta E. Lynch. Among them was that the F.B.I. had obtained a Russian intelligence document that described a purported email by a “Democratic operative” the Russians had hacked. The purported email suggested that Ms. Lynch had been trying to keep the investigation from going too far.
The next month, The Post reported that the F.B.I. had concluded that the purported emails related to Ms. Lynch were faked by Russian spies. A recently declassified inspector general report showed that while Mr. Comey believed the Lynch material was fabricated, he still worried how it would look if she were to announce that Mrs. Clinton would not be charged and then the Russians put it out.
When F.B.I. agents questioned Professor Richman in the leak investigation, he told them that Mr. Comey had told him in broad strokes about the Russian intelligence but never asked him to tell the media about it, and that he understood that it was highly classified and “should be protected,” according to a closing memo that was heavily redacted in places.
Professor Richman said a Times reporter asked him about the Russian intelligence, but the reporter knew more about it than him. The memo said Professor Richman said he was sure “with a discount” that he had not told the reporter about it, and characterized him as being pretty sure he had not confirmed it. It also put that conversation in around January 2017, when he was still at the F.B.I. But it also said investigators had concluded that there was insufficient evidence to charge anyone, “including Comey or Richman,” with the leak.
What proposed charge did the grand jury reject?
Ms. Halligan also asked the grand jury to bring a second count of making a false statement against Mr. Comey over another exchange at the 2020 hearing. This one involved his statement that he did not remember “being taught” of Mrs. Clinton’s “approval of a plan concerning” Mr. Trump and the 2016 election. The grand jury voted against approving that charge.
Senator Lindsey Graham, Republican of South Carolina, asked whether Mr. Comey remembered seeing or being told about a September 2016 report on the topic the C.I.A. had sent the F.B.I., including a copy addressed to Mr. Comey. (Mr. Graham was halting at that point and mumbled the word the draft indictment rendered as “taught” and he may instead of have said “talked.”)
Mr. Comey replied “I do not” and “that doesn’t ring any bells with me.”
The particular exchange at issue concerned another claim from the same trove of problematic Russian intelligence memos. It said hacked American emails showed that Mrs. Clinton had approved a campaign messaging plan in late July 2016 — just after Russia dumped out stolen Democratic emails via WikiLeaks, timed to disrupt the Democratic convention — to attack Mr. Trump over Russia.
On Sept. 29, 2020, the day before the hearing, Mr. Trump’s C.I.A. director, John Ratcliffe, had disclosed the existence of that intelligence in a letter to Mr. Graham, who made it public. The letter also stated that on Sept. 7, 2016, the C.I.A. made a referral about it to the F.B.I., addressed to Mr. Comey and to the agent overseeing the Russia investigation.
Mr. Ratcliffe’s letter cautioned that the Russian material might be fabricated. While the Russian intelligence did not say that the supposed plan involved putting out false claims about Mr. Trump, some Trump allies have been attracted to the theory that Mr. Trump came under suspicion only because the Clinton campaign framed him, and this plan was the origin of the conspiracy.
Subsequent disclosures of reports by a special counsel who started his work in Mr. Trump’s first term, John Durham, have shown that the referral was a report compiling various pieces of intelligence that might be relevant to the Russia investigation, not a report about the purported Clinton plan in particular. Mr. Durham also did not find evidence that anyone at the F.B.I. had received it.
And Mr. Durham gathered evidence showing that the purported emails were fakes that had been cobbled together by Russian spies using passages taken from real emails written by other people. Importantly, he did not report finding any original source for the key lines about a plan.
Charlie Savage writes about national security and legal policy for The Times.
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