The defective indictment of James Comey

Journalist and historian Garrett M. Graff, writing in the New York Times, calls the indictment of James Comey “about the most corrupt attack on the rule of law imaginable.” Plainly, President Trump does not like Jim Comey. Celebrating his indictment, he trashed Comey on social media, calling the former FBI director "one of the worst human beings this country has ever been exposed to."

I wonder what he thinks of Jeffrey Epstein.

On the face of it, there should be no prohibition against the chief law enforcement officer of the country indicting someone he doesn’t like. And as my old boss in the U.S. Attorney’s office, Bob Morgenthau, famously said of his pursuit of Trump’s unsavory mentor Roy Cohn, “A man is not immune from prosecution just because a United States attorney happens not to like him.”

Comey’s lawyers will doubtless mount a motion to dismiss on grounds of selective prosecution — that Comey was singled out for prosecution for political or other base purposes. Normally, that’s a hard one to prove, and a harder one to win, but not in this case. It is typically difficult or impossible to prove that the government had some impermissible motive. But here, Trump gave Comey the selective prosecution argument on a silver platter.  

In a Sept. 20 Truth Social post, Trump called upon his attorney general by name to indict Comey and his other old chestnuts for political retribution. “What about Comey, Adam ‘Shifty’ Schiff, Leticia [sic]???” Trump pressured. “They’re all guilty as hell, but nothing is going to be done.” Ending a screed of vituperation, he exhorted: “JUSTICE MUST BE SERVED, NOW!!! President DJT.” 

So don’t be surprised if Judge Michael Nachmanoff throws the government out of court.

Nachmanoff was a federal magistrate judge for six years before President Biden appointed him to the district court. Prior to that, he was the top federal defender in the Eastern District of Virginia. Trump, however, was quick to rage that Comey’s case will be handled by a “Crooked Joe Biden appointed Judge” — insisting that the “dirty cop” ex-FBI director must pay “a very big price.”

Selective prosecution aside, there are other grounds to dismiss the indictment. Let’s start with the with the indictment itself, which comprises two bare-bones counts based on Comey’s testimony to the Senate in September 2020. Count One alleges that Comey testified falsely, and Count Two charges that, by giving that false testimony, he obstructed a Congressional proceeding.

But did Comey give false testimony? According to the indictment, Comey testified “to a U.S. Senator,” presumably Ted Cruz (R-Texas), that he had not “authorized anyone else at the FBI to be an anonymous source to news reports ... regarding an FBI investigation,” when in fact he had done so. The charge under the relevant statute requires the government to establish that the defendant made a knowingly false statement and that it was material.

Obstructing justice by making false and misleading statements requires, among other things that the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending. The defendant’s “corrupt state of mind” is key to making out the crime.

There is a doctrine in the law of perjury called “literal truth.” The doctrine, elaborated by the Supreme Court, states that the government cannot make out a perjury if the testimony is literally true, even if it is misleading or omits important information. It is the questioner’s duty to probe and press and pry to get the information he wants. As charged in the indictment, the questioner failed to do so.

Comey, after he was fired, publicly stated that he had released to the press some memos about his dealings with Trump through his friend and confidant Daniel Richman, a professor at Columbia Law School. Richman was at that time an unpaid “special governmental employee” of the FBI.

Whether a full-time law professor could be taken as “anyone else at the FBI” under the Supreme Court test for perjury is problematic. Is “at the FBI” a sufficient description of Richman’s role so that Comey understood the question as encompassing him? Cruz, a former Supreme Court law clerk and state solicitor general, could have framed the question, as follows: “When I say ‘anyone else at the FBI’, I don’t mean visitors to the ‘FBI Experience,’ but any official of the FBI, including special agents and special employees and consultants?”

Also, will Richman say that Comey told him to leak the information anonymously? Richman was no “deep throat.”  From all reports, it appears that the media knew Richman was the informant and knew of his relationship to Comey and the FBI. Had they not known this, they never would have published the information he had.

Only in banana republics do we have such political prosecutions. The hastily thrown together indictment of Comey is a stain on our justice system.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.