The Situation: Choose Your Own Adventure: Lindsey Halligan Edition

The Situation on Sunday pondered the removal of the acting U.S. attorney for the Eastern District of Virginia—Erik Siebert—over his lack of enthusiasm for indicting a certain set of the president’s political foes.

Monday, Bloomberg News reported, a White House aide and former Trump personal lawyer, Lindsey Halligan, was sworn in as interim U.S. attorney.

As this column discussed on Sunday, the reason for the switch was that the earlier occupant of the office was apparently unwilling to move forward with cases against New York Attorney General Letitia James and former FBI Director James Comey.

One must imagine, then, that Halligan, unlike her predecessor, is willing to go forward with such charges.  That, after all, is the only reason she is now in the role. Indeed, today, MSNBC is reporting that Comey “is expected to be indicted in the coming days in the Eastern District of Virginia.” 

So let’s try to play Halligan’s hand out for a moment—a “Choose Your Own Adventure: Lindsey Halligan Edition,” if you will. You, the reader, play the role of Halligan.

At least as regards Comey, you don’t have a lot of time. The key statute of limitation runs out in six days; after that, any case gets exponentially harder. So you have a brief window in which to decide whether or not you really want to pursue this.

If you don’t go forward, off with your head. Remember how you got this job, after all.

But you know that both cases are weak. How do you know this? Again, remember how you got this job. Your Trumpist U.S. attorney predecessor was willing to lose his job, rather than bring these. 

So you know you’re playing with a bad hand, but you move forward anyway because you have no choice. Bloomberg News reports:

The US Justice Department is pushing ahead with its investigation of New York Attorney General Letitia James over mortgage fraud allegations after President Donald Trump demanded the case move forward, according to people familiar with the matter.

The case is still being pursued through the US attorney’s office for the Eastern District of Virginia in an effort led by senior Justice Department official Ed Martin, according to the people, who asked not to be named speaking about an ongoing investigation. One of Trump’s aides, Lindsey Halligan, took over the office on Monday.

You seem to be pushing forward with Comey too. (Disclosure: James Comey is a friend of one of the present authors and has written for Lawfare both as FBI director and his subsequent life as a private citizen. He contributed no information to this article.)

That means that sometime over the next few days, you have to push at least one weak case past a grand jury to keep the president happy.

Let’s assume that MSNBC is correct and you focus first on the Comey case, rather than the James case, as it’s the one with the ticking clock. James’s case relates to a 2023 house purchase; while her defenses against any mortgage fraud allegation appear prohibitively strong, that case will be the same two weeks from now as it is today.

 But assuming you decide to move forward with the Comey case—you face an immediate problem: What should you charge him with?

This isn’t normally a problem prosecutors face, as they start with a crime, then figure out whodunnit, rather than starting with a person and only then deciding whathedun. But Trump wants Comey charged and is convinced he’s guilty of something, and it’s your job now to figure out what.

Realistically, you’ve only got a few choices here, and they all suck.

Nearly all of them involve charging Comey with some kind of false statement in connection with his Sept. 30, 2020 testimony before the Senate Judiciary Committee. That’s the last testimony he gave, and it’s almost exactly five years ago. This idea is appealing because it might just be possible to slap together a simple false statements case and get it in under the wire.

Assuming, that is, that you can convince a grand jury that there is probable cause that Comey knowingly testified falsely at that hearing as to any matter of material fact.

And here the right-wing fever swamp brims with putative possibilities. Perhaps Comey testified falsely when, for example, he stood by his earlier testimony from May 2017 that he had never authorized leaks by anonymous sources of material about the Trump or Hillary Clinton investigations. This idea has been making the rounds.

Back in August, independent reporter Catherine Herridge declared on Twitter, now X, that “With the newly declassified records via [Kash Patel] into media leaks and the role of third parties, Director Comey’s 2017 testimony to the Senate Judiciary Committee about leaks appears problematic.” In another post, she cites material related to an investigation called “Tropic Vortex,” which dealt with a disclosure to the New York Times that took place sometime in October of 2016 and was investigated by John Durham.

Yet a quick look at the documents reveals that this material is most unlikely to be damaging for Comey given his testimony. For one thing, it was fully investigated during the first Trump administration and the Justice Department declined to bring charges against anyone in connection with it. The closing memo for the investigation is dated March 2020, meaning that any non-prosecution decisions were made no later than under Attorney General Bill Barr.

For another thing, it appears to have nothing whatsoever to do with either the Trump or Clinton investigations, which was the subject of Comey’s testimony in 2017. The documents don’t reveal much about the story in question, and folks in the right-wing press have assumed that the story in question was this one from Oct. 31, 2016, which dealt with the Russia investigation. That’s a reasonable assumption, given that the material at one point refers to a March 2017 article that clearly is about the Russia investigation. But it is still an assumption.

And it’s very likely wrong. The documents reveal several facts about the underlying article: It appeared sometime in October 2016; it was sourced to two government officials; it contained classified information; and it obviously somehow involved the FBI. 

Exactly one news story meets these criteria, according to the New York Times website search engine. It is headlined, “Yahoo Said to Have Aided U.S. Email Surveillance by Adapting Spam Filter.”

Further evidence that this is the story at issue in this leak investigation came in the Michael Sussman trial, when former FBI General Counsel James Baker testified that there had been a leak investigation conducted by Durham of which he was a subject related to this issue. Reported Politico at the time:

(Disclosure: James Baker is a friend of one of the present authors and is a contributing editor at Lawfare. He contributed no information to this article.) 

In other words, Herridge’s premise here appears to be factually wrong. Even if Comey improperly authorized a classified disclosure to the New York Times in connection with that story—and we are certainly not saying that he did, and we note as well that the investigation of the matter recommended no charges against either Baker “or anyone else”—Comey likely wouldn’t have been lying in this exchange with Sen. Charles Grassley more than eight years ago:

GRASSLEY: Director Comey have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?

COMEY: Never.

GRASSLEY: Have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation?

COMEY: No. (emphasis added)

Nor would he have been lying five years less six days ago, when he had this exchange before the Senate Judiciary Committee with Sen. Ted Cruz about his earlier testimony:

COMEY: I stand by the testimony you summarized that I gave in May of 2017.

CRUZ: So your testimony is you've never authorized anyone to leak? And [former Deputy Director Andrew] McCabe, if he says contrary, is not telling the truth, is that correct?

COMEY: Again, I'm not going to characterize Andy's testimony, but mine is the same today.

Cruz’s specific allusion to McCabe presents another possibility—but it’s another lemon.

The McCabe matter relates to an Oct. 30, 2016, article published in the Wall Street Journal, which cited an anonymous source confirming the existence of an FBI investigation into the Clinton Foundation—a probe that, prior to the article’s publication, the FBI had refused to confirm. The article also detailed internal disputes between FBI and Justice Department officials over how to proceed with the investigation. 

In response to the Wall Street Journal story, the Justice Department’s Office of the Inspector General opened an internal probe to determine whether the article contained unauthorized disclosures and, if so, who was responsible. The inquiry ultimately focused on potential misconduct by McCabe, the then-FBI deputy director. In a report made public in 2018, the inspector general found that McCabe inappropriately authorized aides to disclose sensitive information about the Clinton probe to the Wall Street Journal, and that he demonstrated a “lack of candor” when questioned about it on multiple occasions by FBI officials and investigators.

As the inspector general’s report details, Comey and McCabe’s accounts of the leaking episode “contradicted one another.” In his telling, Comey denied authorizing the leak and claimed that he was ignorant of McCabe’s own plan to authorize the disclosure. Comey said that his first conversation with McCabe about the leak occurred after the article’s publication, on Oct. 31, 2016. During that meeting, according to Comey, McCabe “definitely did not tell me that he authorized” the disclosure.

Comey said McCabe gave him the opposite impression: “I don’t remember exactly how, but I remember some form or fashion and it could have been like ‘can you believe this crap? How does this stuff get out’ kind of thing? But I took from whatever communication we had that he wasn’t involved in it.”

By contrast, McCabe said that he told Comey during the Oct. 31 meeting that he had authorized the leak. According to McCabe, Comey “did not react negatively, just kind of accepted it.”  McCabe also claimed that Comey “thought it was a ‘good’ idea that they presented this information” to the media.

It’s obvious that McCabe and Comey offered different recollections of events surrounding the leak episode. But it’s equally obvious that those divergent recollections will not support a prosecution.

Indeed, as a criminal case against either man, this case has deep problems. For one thing, there is no evidence that Comey was lying about these interactions. Though his account and McCabe’s are not consistent, it is not at all clear that Comey’s memory is the false one—much less that any errors in his account were intentional. The inspector general found that it was McCabe whose answers lacked candor. Indeed, the report found that “the overwhelming weight of that evidence supported Comey’s version of the conversation.” Among other reasons supporting Comey’s side of the story, the inspector general noted that McCabe’s claim that he told Comey about the disclosure on Oct. 31 is inconsistent with his statements during earlier interviews, in which he said he had not authorized the disclosure and did not know who did.

The Justice Department (quite disgracefully) tried to bring a criminal case against McCabe for his statements in the matter. A grand jury in 2019 refused to return an indictment on the subject. It would be quite rich, having sought and failed to charge one party to a memory dispute to turn around and try to charge the other.

The case has another problem: McCabe’s own statement to the inspector general acknowledges that he did not discuss the disclosure with Comey in advance of the article’s publication. As the report summarizes: “McCabe told us that he did not recall telling Comey prior to publication of the October 30 article that he intended to authorize or had authorized Special Counsel and AD/OPA to recount his August 12 call with PADAG to the WSJ, although he said it was possible he did.”

In other words: Neither McCabe nor Comey suggests that Comey knew about or authorized the leak prior to the article’s publication. Yet that is what Cruz’s question to Comey in 2020 was about.

At best, McCabe’s account of the Oct. 31 meeting suggests that Comey acquiesced to the disclosure after the fact. But he never “authorized” it, even under the least generous version of the facts.

So that case is also a dud.

Then there’s the Dan Richman option. Richman, a law professor and close friend of Comey’s, did some media outreach work on Comey’s behalf, as well as advising him on encryption and other matters. He famously was the person who disclosed the contents of Comey’s memo about the loyalty oath dinner with Trump to the New York Times—which Comey testified about. And his role as an informal, non-governmental spokesman for Comey came up at some length in a separate leak investigation known as “Arctic Haze”—documents about which the FBI has also dumped in Grassley’s lap and thus made public in the right-wing press.

(Disclosure: Daniel Richman is a friend of one of the present authors and a contributor to Lawfare. He contributed no information to this article.) 

One reason to think that the current case focuses on the Richman matters is that Richman has actually had a recent interview with prosecutors. Reports the New York Times:

[P]rosecutors from Mr. Siebert’s office subpoenaed Daniel C. Richman, a Columbia law professor and close friend and adviser to Mr. Comey, in connection with an investigation into whether the former director had lied about whether he authorized Mr. Richman to leak information to the news media, according to people familiar with the situation. Documents released by the F.B.I. in August showed that investigators had examined possible disclosures of classified information to The New York Times.

Mr. Richman’s statements to prosecutors were not helpful in their efforts to build a case against Mr. Comey, according to two people familiar with the matter.

It’s easy to see, looking at the Arctic Haze documents, why a conversation with him would not have been helpful in building a case against Comey. Between redactions, the declassified documents contain such sentences as, “Although Richman later told the interviewing agents Comey never asked him to talk to the media”; “Richman claimed Comey never asked him to talk to the media”; “The investigation has not yielded sufficient evidence to criminally charge any person, including Comey or Richman, with making false statements or with the substantive offenses under investigation”; and “Investigative efforts have failed to identify the source or sources of the unauthorized public disclosure.”

Richman certainly talked to the press on Comey’s behalf. But the FBI never found that he had been a source for the disclosure at issue in Arctic Haze. And critically for Comey’s testimony, it never found that Comey had asked him or authorized him to be a source for the story, much less to do so anonymously. (Richman was often quoted by name in stories about the FBI and Comey.)

This one is a loser too.

There’s another possibility, which is to charge Comey with a false statement not about supposed leaks but about the conduct of the investigation itself. This idea appears to be what was on CIA Director John Ratcliffe’s mind when he made the criminal referral that started the investigation of Comey. Back in July, he said on Fox News:

John Brennan testified to John Durham in August of 2020. He also testified to the House Oversight Committee in 2022. Hillary Clinton testified before John Durham under oath in 2022. James Comey testified before the Senate committee in September, 2020. All of that’s within the last five years. And much of that testimony is frankly, completely inconsistent with what our underlying intelligence that is about to be declassified in the Durham Annex — what that reflects. 

This appears to be a reference to Comey’s September 2020 testimonies that he didn’t recall receiving a referral that later became the subject of the so-called Durham annex. Here is the relevant exchange with Sen. Lindsey Graham:

SEN. GRAHAM: Do you recall getting an inquiry from the CI, excuse me, the intelligence community in September, 2016, about a concern that the Clinton campaign was going to create a scandal regarding Trump and Russia?

COMEY: I do not.

GRAHAM: You don't remember getting an investigatory lead from the CIA, hang on a second ... Let me find my document here. . . . September the seventh, 2016, the US intelligence officials forwarded an investigative referral to FBI Director James Comey and Assistant Director of Counterintelligence Peter Strzok regarding US presidential candidate Hillary Clinton's approval of a plan concerning US presidential candidate Donald Trump and Russian hackers hampering US elections as a means of distracting the public from her use of a private email server. You don't remember getting that or being talk, that doesn't ...

COMEY: That doesn't ring any bells with me.

GRAHAM: Okay. Well, that's a pretty stunning thing, it didn't ring a bell, but it did come to you.

The Durham appendix, released recently by Sen. Grassley, describes the relevant incident in detail. But given its description, it’s perfectly understandable why Comey might have been confused by Graham’s account of the matter. Graham made it sound like there was a sudden referral of this matter to the FBI in September 2016. In fact, as the Durham material details, the FBI had been studying this matter for some months. Officials had briefed senior Justice Department officials on it months earlier. The reaction by then-Attorney General Loretta Lynch had so alarmed FBI officials that it had actually played a role in Comey’s decision in July 2016 to announce the end of the Hillary Clinton email investigation himself and without Justice Department involvement. Comey had testified about this matter before, as Durham summarizes: “Director Comey subsequently testified before Congress that the Sensitive Intelligence was among the reasons he decided to announce the conclusion of the FBI’s conclusion of the investigation of Clinton’s private email server in July 2016 without the participation or awareness of the Attorney General or the Department.”

The matter even shows up in Comey’s book, which had been published in 2018, two years before the 2020 testimony. The details were still classified then, but here’s how he described the matter:

[I]n early 2016, there was a development that threatened to challenge that effort significantly. A development still unknown to the American public to this day. At that time, we were alerted to some materials that had come into the possession of the United States government. They came from a classified source—the source and content of that material remains classified as I write this. Had it become public, the unverified material would undoubtedly have been used by political opponents to cast serious doubt on the attorney general’s independence in connection with the Clinton investigation.

Oh, and one other thing: the material in question was likely fraudulent, as the FBI had determined long before September 2016.

In other words, Graham asked Comey about a document that showed up on a particular day concerning a matter Comey had been dealing with for months before that document landed on his desk. The matter in general is one that Comey had testified about, written about in public, and was sufficiently on his mind as to affect major decisions he made. And Graham was asking about the material as though it were new and genuine, rather than disinformation that the FBI had, in fact, run down carefully.

Comey had exactly zero reason to lie about this and seems pretty clearly—and understandably—to have been confused by the question. He also said no more than that he didn’t recall a specific intelligence referral on a matter he had already been aware of and dealing with for months. Why would he? And how on Earth are you going to prove beyond a reasonable doubt that he understood what Graham was talking about and remembered the specific referral?

There’s a final possibility, which is to blow through the statute of limitations and not try to make a false statements case based on the Sept. 20, 2020 testimony. 

The alternative, floated recently by Ratcliffe and by White House deputy chief of staff Stephen Miller, is a more esoteric case based on an alleged conspiracy that began during the 2016 campaign and ended, well, never.

As Ratcliffe put it: “In a conspiracy . . . the statute of limitations does not start to run until the last act in furtherance of that conspiracy. And . . . part of why this is so important is the people behind this are still furthering the conspiracy. They are refusing to admit or acknowledge what they did in 2016 and what they did in 2020 was wrong.”

Miller was blunter about it:

It is an ongoing and continuing conspiracy. It continued through the entirety of President Trump’s first term. It continued through the entirety of President Biden’s term in office. And it continues to this day. There are still Deep State coup plotters who are trying to conceal and hide this information. . . . All of this behavior, all of this conduct collectively means that the conspiracy hasn’t ended, is ongoing. Comey, in particular, has throughout the years engaged in conduct, and lies, public statements and testimony in front of Congress, false testimony, whose sole purpose was to perpetuate and continue the conspiracy.

This is the kind of thing that makes for good red meat television, but a lousy indictment. Note that neither Miller nor Ratcliffe bothers to identify the supposed underlying offense of this ongoing conspiracy. Miller at one point refers to a “seditious conspiracy,” but a seditious conspiracy requires a plot to overthrow the government or use force against it. He also suggests it’s a conspiracy against the government, which could theoretically be a reference to a so-called Klein conspiracy “to defraud the United States.”

Good luck with that. A conspiracy to defraud the United States requires, among other things, an agreement to commit an unlawful act to impede or obstruct a legitimate government function. Nowhere in the verbal salad of allegations people throw at Comey or Brennan or any of the others is there anything like an agreement to do anything illegal, much less by way of obstructing governmental functions.

In a courtroom, a conspiracy has to aim to commit a violation of federal law or articulate a coherent fraud against the United States. The director of national intelligence can declare that people committed a “treasonous conspiracy in 2016 . . . to subvert the will of the American people and enact what was essentially a years-long coup with the objective of trying to usurp the President from fulfilling the mandate bestowed upon him by the American people.” But you—the prosecutor—can’t. Because this is legal gibberish. Without a predicate offense or a coherent theory of what the defendants were trying to deprive the United States of to which it was lawfully entitled, it doesn’t allege a crime. Alleging that a conspiracy to commit a non-crime continues until this day is just another way of saying that people keep criticizing Trump.

In short, whatever way you play Halligan’s hand, you lose. You lose by bringing a conspiracy case. You lose by bringing a false statements case involving the conduct of the investigation. You lose by bringing a false statements case involving supposed leaks. You lose by not bringing any case. You lose by going after Letitia James. And you lose by going after James Comey.

The only question is whether you lose at the hands of a grand jury, a federal judge, or the president who just finished praising you on social media. 

The Situation continues tomorrow.