Federal Prosecutors Flesh Out Their Case Against James Comey. It Still Looks Shaky.

On July 5, 2016, FBI Director James Comey publicly explained why he did not think Hillary Clinton, Donald Trump’s Democratic opponent in that year’s presidential election, should be prosecuted for her “extremely careless” handling of “very sensitive, highly classified information” as secretary of state during the Obama administration. But four months later, just 11 days before the election, Comey informed Congress that the FBI had reopened its investigation of Clinton in light of recently discovered emails between her and her personal assistant. Although the new evidence did not change the FBI’s assessment of Clinton’s conduct, Comey did not report that outcome to Congress until November 6, two days before the election.

Comey took a lot of flak from Democrats, who thought he had recklessly undermined their nominee’s prospects by revealing a renewed yet ultimately fruitless investigation so close to the election. He responded by encouraging his “good friend” Daniel Richman, a Columbia law school professor, to defend him in interviews with reporters, which helped generate stories that summarized Comey’s perspective on the controversy. Sometimes Richman was quoted by name, and sometimes he provided information “on background.” Richman’s interactions with the press, it turns out, are at the center of the perjury and obstruction charges against Comey.

That point, which federal prosecutors first revealed to Comey’s lawyers on October 15 and fleshed out in a brief they filed on Monday, adds some much-needed clarity to the vague, skimpy indictment that Lindsey Halligan, the interim U.S. attorney for the Eastern District of Virginia, obtained on September 25. At the same time, it sheds light on the reasons why Halligan’s predecessor, whom Trump replaced just a few days before the indictment, did not think the case was worth pursuing—an assessment shared by career prosecutors in his office.

Halligan says Comey lied during a Senate Judiciary Committee hearing on May 3, 2017, less than a week before Trump fired him out of anger at the FBI’s investigation of alleged ties between his 2016 campaign and the Russian government. Although the statute of limitations precludes charging Comey in connection with that hearing, Halligan alleges that he reiterated his lie when he reaffirmed his 2017 testimony during a Senate Judiciary Committee hearing on September 30, 2020. Halligan managed, just barely, to obtain an indictment within five years of the latter hearing.

As relevant to the indictment, Comey answered “no” in 2017 when Sen. Charles Grassley (R–Iowa) asked whether he had “ever authorized someone else at the FBI to be an anonymous source in news reports” about “the Clinton investigation.” At the 2020 hearing, Sen. Ted Cruz (R–Texas) noted the exchange with Grassley, and Comey said “I stand by” that answer, adding that his testimony “is the same today.”

In sticking by his 2017 testimony, Halligan alleges, Comey “willfully and knowingly” made “a materially false, fictitious, and fraudulent statement” to Congress, a felony punishable by up to five years in prison under 18 USC 1001(a)(2). Comey’s statement was false, the indictment says, because he “then and there knew” that he “in fact had authorized PERSON 3 [Richman] to serve as an anonymous source in news reports regarding an FBI investigation of PERSON 1 [Clinton].” Halligan says Richman qualified as “someone else at the FBI” because, in addition to his full-time, paying gig at Columbia, he served the agency as an unpaid “special government employee” during Comey’s tenure there.

There are several problems with Halligan’s interpretation of Comey’s exchange with Cruz, beginning with the fact that the senator’s questioning focused on a dispute between Comey and Andrew McCabe, his former deputy, regarding the release of information about a different FBI investigation. Comey’s lawyers argue that “when Senator Cruz referenced Senator Grassley’s question about whether Mr. Comey authorized ‘someone else at the FBI’ to serve as anonymous source, there was no reason to assume that he was referring to anyone but full-time employees like Mr. McCabe—who were stationed at the FBI—as opposed to someone like Mr. Richman, who was a Special Government Employee living fulltime in New York.”

In light of Comey’s close, longstanding friendship with Richman, it is especially plausible that he did not think of him as “someone else at the FBI.” Richman repeatedly defended Comey’s handling of the Clinton investigation, both on and off the record, in conversations with journalists—to the point that a sympathetic 2017 article in The New Yorker described Richman as “a close friend of Comey who has served as his unofficial media surrogate.” Given that background, it seems unlikely that Comey, in his responses to Grassley and Cruz, was trying to cover up Richman’s role in getting him good press.

That is nevertheless what federal prosecutors suggest in their November 3 brief. Officially, it is a response to Comey’s argument that the indictment should be dismissed because his prosecution is vindictive and selective, driven by Trump’s personal grudge against him. But in rebutting that claim, the brief offers a narrative that was conspicuously missing from the indictment, which Halligan rushed to obtain before a statutory deadline that would have missed by the end of September.

Notably, the indictment was signed by Halligan alone, which seemed to reflect internal skepticism about the charges. But the response to Comey’s claim of vindictive and selective prosecution is signed by two assistant U.S. attorneys: N. Tyler Lemons and Gabriel J. Diaz, both of whom were reassigned to Halligan’s office from the Eastern District of North Carolina in October.

Lemons and Diaz cite emails between Comey and Richman that illustrate their collaboration in generating stories that reflected Comey’s defense of the way he handled the Clinton investigation. On November 1, 2016, for example, Comey expressed his dissatisfaction with coverage of the controversy in The New York Times.

“When I read the [Times] coverage involving [reporter Michael Schmidt], I am left with the sense that they don’t understand the significance of my having spoke[n] about the case in July,” Comey wrote. “It changes the entire analysis. Perhaps you can make [Schmidt] smarter.”

Comey was alluding to his argument that he had an obligation to update Congress about the Clinton investigation in light of his earlier announcement. “Why is this so hard for them to grasp?” he wondered. “All the stuff about how we were allegedly careful not to take actions on cases involving other allegations about which we have never spoken is irrelevant. I love our practice of being inactive near elections. But inactivity was not an option here. The choices were act to reveal or act to conceal.”

Richman replied the next day, assuring Comey that he was working hard to promote his perspective: “This is precisely the case I made to them and thought they understood. I was quite wrong. Indeed I went further and said mindless allegiance to the policy (and recognition that more evidence could come in) would have counseled silence in [J]uly to let [Clinton] twist in the wind.”

Later that day, Richman told Comey he had tried again, this time with more success: “Just got the point home to [Schmidt]. Probably was rougher than u would have been.”

That same day, the Times ran a flow-chart-style article by Matt Apuzzo and Sergio Pecanha under the headline “These Are the Bad (and Worse) Options James Comey Faced.” Comey deemed that article “pretty good,” adding, “Someone showed some logic. I would paint the cons more darkly but not bad.” Richman replied, “See I *can* teach.” Comey expressed his gratitude: “Well done my friend.”

On February 11, 2017, Richman emailed Chuck Rosenberg, who was then acting head of the Drug Enforcement Administration. Rosenberg had previously held various FBI and Justice Department positions, including chief of staff for Comey when he was deputy attorney general during George W. Bush’s administration.

“My pal at the NYT, Mike Schmidt, is (along with [Matt] Apuzzo, [Adam] Goldman, and (gag me) [Eric] Lichtblau)…doing a huge piece on the [Clinton] emails,” Richman wrote. “He’s had a ton of background conversations with players and non-players (like me). Mike would very much like to talk to you exclusively on background as he tries to [understand] Jim’s decisionmaking to the extent possible. Mike asked me to reach out to you. Hence this email. Would you be willing to chat with him?” Rosenberg said he would “reach out” to Schmidt.

The “huge piece” to which Richman referred evidently was a story by Apuzzo, Schmidt, Goldman, and Lichtblau that the Times ran on April 22, 2017, under the headline “Comey Tried to Shield the F.B.I. From Politics. Then He Shaped an Election.” The story quoted Richman by name, describing him as “a longtime confidant and friend of Mr. Comey’s.” Comey was again pleased. “I read the piece,” he wrote to Richman the next day. “Thanks so much for your words and tell [Schmidt] he did a good job. Would be different if I wrote it but it is by and large fair.”

Richman replied: “You’re ever so welcome. And will do re Mike. Any badly or under-developed points for me to work on with the New Yorker? Or just the usual.”

Richman apparently was referring to a flattering article by Peter Elkind that would appear in the May 11, 2017, issue of The New Yorker, titled “James Comey’s Conspicuous Independence.” Like the April 22 Times story, it quoted Richman by name, describing him as “a Columbia law professor and close friend of Comey who has served as his unofficial media surrogate.”

The evidence cited by the government, in short, does not do much more than confirm Richman’s well-known role as Comey’s champion. It establishes that Richman, with Comey’s encouragement, sometimes openly defended his friend and sometimes worked behind the scenes to influence press coverage.

Given the latter approach, it is accurate to say that Comey “authorized” Richman to “serve as an anonymous source in news reports” about the Clinton investigation. But the assertion that Comey lied about that hinges on two questionable assumptions.

Halligan assumes that Comey, when he was questioned by Grassley and Cruz, would have thought of Richman as “someone else at the FBI” rather than his “longtime confidant and friend.” She also assumes that Comey was deliberately trying to mislead the senators about his well-established relationship with Richman, at least to the extent that it included “background” discussions with reporters.

To convict Comey, prosecutors would have to persuade a jury that there is no reasonable doubt about either of those propositions. It is therefore not surprising that Erik Siebert, Halligan’s predecessor, was not keen to pursue this case, or that Trump managed to get what he wanted only by intervening at the last minute. He replaced Siebert with Halligan, a neophyte prosecutor whose main qualification was her willingness to overlook the weaknesses that had deterred her predecessor, and he publicly ordered Attorney General Pam Bondi to prosecute Comey before it was too late.

“We can’t delay any longer,” Trump told Bondi. “JUSTICE MUST BE SERVED, NOW!!!” Five days later, Siebert delivered the indictment that Trump had demanded, although it was such a hasty job that the details of the allegations against Comey are only now coming into focus. Those details reinforce the impression that Trump was determined to get Comey one way or another, regardless of the law or the evidence.