The Situation: Where’s the Lie?

The Situation on Friday outlined James Comey’s defense based on the numerous motions his lawyers have filed in his criminal case so far. 

Yesterday, the prosecution outlined its own case.

Spoiler alert: That case is unspeakably, breathtakingly devoid of merit. To see it laid out in all its patchwork threadbaredness is to gasp with embarrassment for the prosecutors who have presented this to an American court. It is to understand why no career prosecutor in the Eastern District of Virginia would work this case and why Interim U.S. Attorney Lindsey Halligan had to import two sacrificial lambs from North Carolina to litigate the matter. To read it is to spend 48 pages understanding the depth of corruption in the Justice Department in the second Trump administration.

The context for the department fleshing out its charges against Comey is the government’s response to Comey’s motion to dismiss the case as a selective and vindictive prosecution. (Disclosure: Comey is a friend of one of the present authors and has written for Lawfare both as FBI director and in his subsequent life as a private citizen. He contributed no information to this article.)

The government’s brief warrants note for a variety of reasons, and not just because one of the present authors makes a cameo appearance in it on page 5 as “Individual 2.” (The reference is to this innocuous email of Oct. 30, 2016 that refers, in turn, to this Lawfare article from the previous day, written with “Individual 1,” who is also known as Jack Goldsmith.)

But the brief’s most striking feature is not actually its arguments on the merits of Comey’s motion. Here, the government—faced with a record of presidential animus toward a defendant and a series of resulting procedural irregularities in the case unparalleled in the entire legal history of the United States—does more or less what one might expect.

It argues that the legal standard for granting such a motion is high, which is true.

It argues that the president of the United States was not the decision-maker in the indictment of Comey, which is laughably untrue.

It argues that any animus Trump might have expressed over the years towards Comey is merely a reflection of Trump’s righteous indignation that the former FBI director—for so the brief argues—leaked stuff and lied about it to Congress.

It argues that there’s no “direct” evidence that Trump ordered the prosecution of Comey, despite his having declared publicly that he was removing the relevant U.S. attorney because he would not bring the case (and that of Letitia James) and installing a woman who would do just that.

And it argues that there’s no evidence that Trump and Halligan are retaliating against Comey by prosecuting him for his exercise of some legal right.

Some of these arguments are audaciously meritless; some provide genuine doctrinal puzzles that the judge will have to work through. None of them, however, is what ultimately makes the brief interesting.

The interesting aspect of the brief, rather, is its account of the government’s substantive case against Comey.

The Comey indictment was notably devoid of facts. Few federal indictments of prominent figures have ever “spoken” less. So it was only a matter of time before the government had to spell out what precise statement it would endeavor to prove to a unanimous jury beyond a reasonable doubt constituted a lie to Congress and an effort to obstruct a congressional investigation—and what underlying conduct demonstrated its falsity. In this brief, the government for the first time does that.

So let’s go through the facts as alleged by the government, and let’s see if we can find a false statement to Congress in them.

For purposes of this exercise, we will assume all facts true as alleged, and we will make some other assumptions in the government’s favor—as discussed below. The question for present purposes is whether the government’s own proffered facts even amount to a lie in Comey’s testimony.

There are actually two testimonies at issue in the case. The first is this exchange that took place between Sen. Charles Grassley (R-Iowa) and then-FBI Director Comey on May 3, 2017 in a Senate Judiciary Committee hearing. The date here of the testimony is important. This exchange took place a few days before Trump fired Comey, who did not yet know he was going to be fired and then decide to release certain information to the New York Times through a Columbia University law professor named Daniel Richman. (Disclosure: Richman is a friend of one of the present authors and a Lawfare contributor. He contributed no information to this article.)

The exchange reads in relevant part:

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: Question two, relatively related, 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.

Comey cannot be prosecuted for this statement, even if it were willfully and intentionally false on a material point. The statute of limitations has run out on it long ago, it having happened eight years ago. So to prosecute Comey for its alleged falsity, the Justice Department alleges that Comey incorporated it by reference in more recent testimony.

This is the Sept. 30, 2020 testimony Comey gave, also to the Senate Judiciary Committee, which just scrapes by under the five-year statute of limitations with three days to spare. In it, Comey had the following exchange with Sen. Ted Cruz (R-Texas):

CRUZ: On May 3, 2017, in this committee, Chairman Grassley asked you point blank, “Have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?” You responded under oath, “Never.” He then asked you, “Have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton administration?” You responded again under oath, “No.” Now, as you know, Mr. McCabe, who works for you, has publicly and repeatedly stated that he leaked information to the Wall Street Journal and that you were directly aware of it and that you directly authorized it. Now, what Mr. McCabe is saying and what you testified to this committee cannot both be true. One or the other is false. Who’s telling the truth?

COMEY: I can only speak to my testimony. 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 Mr. 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.

Comey makes several arguments about this exchange that are not at issue in the current motion. He argues, for example, that the only thing he testified to in 2020 is that he stands by his earlier testimony, not that the earlier testimony was correct in every particular—and that his 2020 testimony is thus literally true whether or not the earlier testimony was accurate, as long as he did, in fact, stand by it. (A literally true statement cannot be a perjury under longstanding caselaw.) 

He also argues that the question Cruz posed was clearly about former FBI Deputy Director Andrew McCabe, not about anything else, and that Cruz misstated a key factual point, thus making the question fatally vague. These may actually be winning arguments, but they are the subject of a different motion. So let’s assume them away here and treat the 2020 testimony as as the government wishes—that is, as restating before Congress and attesting to the accuracy of the sworn statement of 2017 in all its particulars.

This raises the key question: What facts does the government offer to suggest that there is something factually deficient about Comey’s 2017 testimony? 

The government’s answer to that question appears on pages 2-15 of its brief. Let’s go through that answer in detail.

The prosecution begins by reminding the judge that the FBI under Comey conducted the Clinton emails investigation during the 2016 election cycle, that Comey closed the matter in the summer of 2016 with a controversial public statement that Clinton had been reckless but that no reasonable prosecutor would bring a case against her based on the facts the FBI had amassed, that he did so on his own authority and bypassed the Justice Department, that he reopened the matter in October 2016 in response to new material that came to light that suggested there were emails the FBI had not yet reviewed, and that he notified Congress of his having done so on Oct. 28, 2016. (See pages 2-4). None of this material remotely implicates the truth of anything Comey testified to. The government presumably includes it both as background for the judge and to remind both him and other readers that they probably hate Comey.

The brief then turns to Comey’s “correspondence with Daniel Richman—and Richman’s correspondence with the press—regarding the Midyear Exam investigation.” It cites a series of  interactions between Richman and Comey, or between Richman and third parties, spanning from a period between Oct. 29, 2016 to May 11, 2017.

Here the specific text of the question Comey answered in his testimony matters a lot—for a number of reasons. Grassley asked Comey: “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” (emphasis added).

It is thus not adequate for proof that Comey made a false statement for the government to show that Richman interfaced with reporters on Comey’s behalf. That fact has never been a secret (Richman did much of this work in the open and on a named basis), and Comey has never denied it. In fact, it was Comey who dramatically announced Richman’s role in Senate testimony that the brief later quotes (see pages 10-11).

Rather, to prove that Comey lied, the government has to show (a) that Richman was “at the FBI” at the time; (b) that Comey “authorized” the press contact; (c) that he authorized Richman to do the contact anonymously; and (d) that the contact concerned the Trump or Clinton investigation. 

This raises a threshold question: Was Richman “at the FBI” at all during each of the relevant communications cited by the government?

Richman, as mentioned above, was not an FBI official but a Columbia University law professor. As a confidante of Comey’s, he had signed on to work as a Special Government Employee at the FBI, where he advised on encryption issues. He also acted in that role as a kind of counselor to Comey, and he had a security clearance so he could talk to Comey about whatever the director wanted to discuss. According to his appointment letter, he worked in this capacity “without compensation on a part-time and/or intermittent basis.” All of which suggests that Richman’s connection to the FBI was relatively tenuous—he was arguably never at the FBI in the sense a reasonable person would understand the phrase, though that is probably a jury question, not a question of law at this stage. He also appears to have resigned as a special government employee in February 2017.

So let’s take a closer look at the alleged press contacts:

First (pages 4-5), on Oct. 29, 2016—the day after the notification went to Congress—Richman emailed Comey on his personal email account. After inquiring about Comey’s plans for Halloween, Richman alluded to the letter. “Make sure you keep your eyes shut. The country can’t seem to handle your finding stuff,” he wrote to Comey. “There are more morons with access to ink than I ever dreamed.”

Comey allegedly replied: “Thanks for the battling you have done against unreason. This is a strange time. But we press on.” This exchange does not remotely authorize Richman to be a source, let alone an anonymous source, for any media of any kind.

Ditto the second interaction (page 5), which the government describes in its entirety as follows: 

The next day, Mr. Richman sent the defendant an email regarding an op-ed he had been asked to write for The New York Times about the defendant’s letter. Gov. Ex. 5 (Oct. 30, 2016 emails). Mr. Richman stated that he was “not inclined” to “write something,” but that he would “do it” if the defendant thought it would “help things to explain that [the defendant] owed cong absolute candor,” and that the defendant’s “credibility w cong w[ould] be particularly important in the coming years of threatened cong investigations.” See id. The defendant responded: “No need. At this point it would [be] shouting into the wind. Some day they will figure it out. And as [Individual 1 and Individual 2] point out, my decision will be one a president elect Clinton will be very grateful for (although that wasn’t why I did it).” 

Again, the subject at hand is not whether Richman should be an anonymous source. It is whether he should write an op-ed, which would be signed with his own name. Moreover, Richman wasn’t asking for Comey’s authorization to write the op-ed. He was saying that he had no intention of doing unless Comey specifically thought it would be helpful.

Over the next two days, the two had additional exchanges that are arguably a closer case—though still not close. The first involves reporter Mike Schmidt of the New York Times (pages 5-6). On November 1, 2016, Comey writes to Richman a set of reflections on why it is so hard for the press to understand what he did:

When I read the times coverage involving Mike S, I am left with the sense that they don’t understand the significance of my having spoke about the case in July. It changes the entire analysis. Perhaps you can make him smarter. 

Let’s imagine the Times had a policy against writing new articles close to elections if the articles might influence the election. Consistent with that policy they would avoid writing this week if sources told them that the FBI was looking at Huma Abedin’s emails.

But let’s imagine that they wrote a very high profile piece in July that sources lead them to now conclude was materially inaccurate. Would they correct it or stay silent because they have a policy to avoid action near elections?

I suspect they would quickly conclude that either course is an “action” and the choices are either reporting or concealing but there is no longer a “neutral” option because of the reporting in July. I also suspect they would resolve very quickly to choose the action of disclosing because to remain silent is to actively mislead, which has a wide range of very bad consequences.

Why is this so hard for them to grasp? 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.

In the government’s brief, the sentence, “Perhaps you can make him smarter” is italicized as though it were some kind of smoking gun.

But the email is not, in fact, an authorization to talk to the press. It is a complaint about press coverage and perceived press misunderstanding of Comey’s rationale for his actions, no doubt made with an expectation that Richman might act on it. What’s more, there is not the remotest suggestion that Richman should do so anonymously, as opposed to by name. Nor is it clear from the record on what basis Richman did, in fact, talk to the Times. The story that resulted is not actually a story at all, but a kind of flow chart of Comey’s logic that doesn’t source anything to anybody and operates entirely on the basis of the public record as it stood at the time.

On page 6, the brief reads:

The defendant emailed Mr. Richman shortly thereafter, entitling the message “Pretty good” and sending a link to a New York Times piece regarding the defendant’s purported options in late October 2016 concerning the Clinton email investigation (Midyear Exam). See Gov. Ex. 7 (Nov. 2, 2016 email chain); Matt Apuzzo and Sergio Peçanha, These Are the Bad (and Worse) Options James Comey Faced, N.Y. Times (Nov. 2, 2016).  The defendant wrote: “Someone showed some logic. I would paint the cons more darkly but not bad.” See Gov. Ex. 7 (emphasis added). Mr. Richman responded: “See I *can* teach.” See id. The defendant replied: “Well done my friend. Who knew this would. E so uh fun.”

Again, the government emphasizes “Well done my friend,” as though this is highly incriminating. But as with the last emphasis, this one seems to prove much less than prosecutors imagine. For one thing, the government omits the context of Richman’s immediately preceding email, which reads in its entirety as follows: “See I *can* teach. And I just did more teaching with Megan fox and Anderson cooper. Wore a jacket this time.”

These latter remarks seemingly refer to Richman’s public television appearances on Fox News and CNN, not to any covert communication with the New York Times. As such, Comey’s response was an acknowledgement of Richman’s public appearances, not an authorization of anonymous leaking about the Clinton investigation. Yet the government’s brief conveniently elides this interpretation by stripping the exchange of context. 

Even if one assumes that Comey said “Well done” in reference to the Times story, that still doesn’t come close to proving the government’s case. Comey was frustrated that the logic of his decision was not reflected in New York Times stories. He communicated that frustration to Richman. Richman talked to the Times. The Times ran a flow chart outlining the logic of Comey’s thinking. After publication, Comey remarked that the story was “pretty good” and told Richman “well done.” Throughout the entirety of the exchange, there was no question of authorization or anonymity.

Fast forward to April of the following year, and the brief (page 7) offers the following purported bombshell:

Similarly, in April 2017, the defendant emailed Mr. Richman apparently regarding a lengthy article in The New York Times—in which Mr. Richman was a named source—regarding the Clinton email investigation (Midyear Exam). See Gov. Ex. 8 (Apr. 23, 2017 email chain). The defendant wrote that he had “read [t]he piece. Thanks so much for your words and tell [Reporter 1] he did a good job. Would be different if I wrote it but it is by and large fair.” See id. Mr. Richman replied: “You’re ever so welcome. And will do re [Reporter 1]. Any badly or underdeveloped points for me to work on with the New Yorker? Or just the usual.” See id.

Here too, there is no suggestion that Richman is seeking, or Comey is granting, authorization to talk to the press. By the time this exchange happened, Richman had already done the talking. And he had done so on a named basis. Comey appears to be merely thanking him for the substance of his comments and asking him to convey thanks to the reporter, who once again in Schmidt. Note as well that Richman does not seek Comey’s permission or authorization to talk to the New Yorker. He simply announces that he’s engaging with that publication and asks what themes Comey wants stressed. Yet again, there is no discussion of whether he is to do so anonymously.

The brief’s next supposed gotcha (page 7) involves Chuck Rosenberg, then the head of the Drug Enforcement Administration and formerly a U.S. attorney and senior FBI official under Comey. (Disclosure: Rosenberg is a friend of one of the present authors and a Lawfare contributor. He contributed no information to this article.) Here Richman isn’t even giving information to a reporter. He’s trying to connect Rosenberg with the New York Times to talk on background. As the government describes the interaction:

Richman emailed Individual 3, a then-government official who had served in high-ranking positions at the FBI and DOJ. Mr. Richman wrote: “Hi [Individual 3] - my pal at the NYT, [Reporter 1] is (along with [Reporter 2], [Reporter 3], and (gag me) [Reporter 4]) is doing a huge piece on the HRC emails. He’s had a ton of background conversations with players and non-players (like me). [Reporter 1] very much would like to talk to you exclusively on background as he tries to understand[] Jim’s decision making to the extent possible. [Reporter 1] asked me to reach out to you. Hence this email. Would you be willing to chat with him?” See Gov. Ex. 9 (Feb. 11, 2017 email chain) (emphasis added). Individual 3 replied in the affirmative and stated that he would “reach out” to the reporter. See id. 

Yet again, the incident—even assuming Richman is still “at the FBI” months after his February 2017 resignation—shows no specific sign of authorization from Comey. And Richman here isn’t being an anonymous source. He’s being a matchmaker.

The next paragraph (page 8) is where things really go off the rails. “Mr. Richman also corresponded with Reporter 1 via text message shortly after the defendant’s termination as FBI Director. Over a period of days beginning on May 11, 2017, the pair texted,” the government alleges and follows with a string of texts between Schmidt and Richman in which Richman does, in fact, appear to be waiting for authorization to speak to Schmidt as an unnamed source.

But there’s a problem with using this exchange to prove Comey a liar for his May 3, 2017 testimony before the Senate Judiciary Committee. It took place a week after that testimony, when Comey was no longer FBI Director and when Richman was thus no longer in any conceivable sense “at the FBI” (having resigned) as an adviser to the director (who had been fired). By this time, Richman was part of Comey’s legal team. And what’s more, none of the communications between Richman and Schmidt even plausibly regard stories about the Clinton investigation. Instead, their exchanges concern Schmidt’s reporting about a variety of other topics, including Comey’s forthcoming public testimony before the Senate Select Committee on Intelligence and the investigation of Michael Flynn, Trump’s former national security adviser. 

These same problems plague the next fact pattern that supposedly shows that Comey lied to Congress, which appears on page 10 and deals with the disclosure of the contents of the “loyalty oath” memo, in which Comey detailed a dinner in which Trump told him he needed “loyalty” from him. As the brief explains:

The defendant also asked Mr. Richman to share the contents of one of those memoranda with a reporter at The New York Times. Mr. Richman did. See id. at 13; see also id. at 2, 39–41. The defendant later told the OIG that he “didn’t consider what he asked Richman to do privileged,” and that he “didn’t intend to assert any kind of privilege about the direction to Richman.” See id. at 50 (citation modified). When asked whether he was acting “as Comey’s attorney or as Comey’s friend by contacting the reporter,” Mr. Richman told the OIG that “it was both,” and that “while one could imagine situations where parsing of that sort was necessary, Richman never found those occasions arose.” See id. at 41 (alteration omitted).

These events took place after Comey’s testimony, after Richman had resigned from the FBI, and after Comey’s firing. They simply cannot support a claim that Comey lied when he testified—having no idea that he would be fired—that he had not previously authorized anyone at the FBI to speak anonymously to the press. 

Having set out the supposed factual basis for the prosecution’s case against Comey, the brief then takes a bizarre detour. On pages 14-15, the government describes an incident in which a team of investigators at the FBI were “alerted to a seemingly unused SCIF in FBI headquarters.” According to the government, the SCIF contained “a random collection of classified documents,” many of which were located “on the floor in five burn bags.” The brief alleges that the documents recovered from the SCIF included copies of notes Comey had written during his tenure as FBI director. The alleged notes, dated September 26, 2016, read in part: “HRC plan to tie Trump.”

The government claims that the handwritten notes purportedly discovered in the “burn bag” SCIF is somehow relevant in light of Comey’s prior testimony before Congress on Sept. 30, 2020. Specifically, the brief notes that Comey, under questioning by Sen. Lindsey Graham (R-S.C.), was asked whether he recalled being told about “U.S. presidential candidate Hillary Clinton’s approval of a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private email server.” Comey responded by stating  that it “doesn’t ring any bells with me.”

Graham’s question appears to be a reference to a referral of a possible “Clinton campaign plan” that later became the subject of the so-called Durham annex, discussed in this earlier “The Situation” column. For any number of reasons discussed then, this is not a plausible basis to charge Comey with lying. None of them matters for present purposes, however, because Comey is not charged with lying about the Durham annex or the so-called Clinton plan; indeed, the grand jury apparently rejected Halligan’s effort to indict Comey based on that very testimony. Comey is charged, rather, only in relation to his testimony about whether he authorized someone at the FBI to serve as an anonymous source in news reports about the Clinton investigation. The “burn bag” SCIF, the handwritten notes, and Comey’s 2020 testimony about the “Clinton plan” are wholly irrelevant to the crimes with which he is charged.

And that is all there is. You can pour over this brief all day long, and you won’t find anything else suggesting that Comey’s Senate testimony on May 3, 2017 was false—or that his standing by that testimony five years less three days before his indictment was false.

All of which raises the question: Where’s the lie?