There are times when I miss practicing law, because — right now — there are few more important posts for defending the rule of law and the integrity of the American system of justice than on James Comey’s defense team.
Let’s be clear — perfectly clear — about what happened last week. On Thursday, a federal grand jury, acting on the urging of President Donald Trump’s Department of Justice, indicted Comey, the former director of the FBI. The indictment was the culmination of a transparently vindictive campaign by Trump to get revenge on his political enemies, no matter the facts or the law.
Let’s rewind the clock to May 2017. At the time, the FBI was investigating Russian interference in the 2016 election, and Trump was furious that he was implicated. Trump reportedly demanded that aides speak out in his defense and was so angry that he was screaming at television clips about the investigation.
While Trump has spent years denigrating the “Russia hoax,” it’s important to remember that there was already evidence of serious misconduct on Trump’s team. Trump’s first national security adviser, Michael Flynn, resigned after he misled Vice President Mike Pence about his contacts with the Russian ambassador to the United States. Trump’s campaign chair, Paul Manafort, had to resign in the middle of the campaign in part because of his own lucrative ties to Russian-allied leaders in Ukraine.
The stated justification for firing Comey was his alleged mishandling of the investigation of Hillary Clinton’s use of a private email server for government business. The memorandum from Rod Rosenstein, then deputy attorney general, that recommended Comey’s termination outlined a series of complaints about Comey’s decisions, both to publicly discuss the results of the FBI’s investigation and to publicly announce the reopening of the investigation in October 2016 just days before the election.
For Trump, however, this justification was unquestionably a pretext. Days after Comey was fired, Trump told NBC News that he had intended to fire Comey “regardless” of the Department of Justice’s recommendation, and the reason was the Russia investigation. “When I decided to just do it,” he told NBC’s Lester Holt, “I said to myself, I said, you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should have won.”
The Russia hoax is central to MAGA’s persecution narrative, and Trump has had a thirst for revenge ever since. He’s repeatedly attacked Comey in quotes, comments and interviews. He campaigned to be elected president last year promising retribution.
Now Trump is getting exactly what he wanted. The sequence of events is startling.
On Sept. 19, Erik Siebert, the acting U.S. attorney for the Eastern District of Virginia, who was initially selected by Trump, resigned after Trump told reporters, “I want him out.” Siebert had been investigating two Trump opponents, Comey and Letitia James, the attorney general of New York.
Both cases had hit roadblocks. Siebert reportedly had concerns about the strength of the evidence against both Comey and James. Trump did not care. He wanted his indictments, and he wanted them now.
On Sept. 20, he posted an extraordinary public message that was directed to his attorney general, Pam Bondi. “Pam,” it began, “I have reviewed over 30 statements and posts saying that, essentially, ‘same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.’”
He indicated that he was promoting Lindsey Halligan, one of his former personal attorneys, to take Siebert’s place, and ended with this directive: “We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”
After Halligan assumed office Sept. 22, federal prosecutors reportedly presented her with a memorandum detailing the weaknesses in the case against Comey. No matter. She pressed on, reportedly presenting the case against Comey to the grand jury herself, and on Sept. 25 she secured a simple, two-count indictment against Comey, for allegedly lying to Congress and for allegedly obstructing justice.
She had tried to secure a three-count indictment, but in a highly unusual move (it’s a famous saying in the legal profession that a decent prosecutor can persuade a grand jury to indict a ham sandwich), the grand jury refused to indict on one of the counts.
Details
The indictment is so short and so bereft of detail that it’s hard to determine the factual allegations in the case. Jake Tapper of CNN is reporting that sources tell him that the indictment is related to an FBI investigation, called “Arctic Haze,” that was looking into leaks to news outlets reporting on the origins of the Russia investigation.
According to CNN, investigators examined whether Comey authorized Daniel Richman, a friend of his who is a law professor at Columbia University, to leak information to the media.
No one doubts that Richman spoke to the media in Comey’s defense, but the redacted documents from the Arctic Haze investigation reveal that he told investigators that “Comey never asked him to talk to the media.” They conclude with this statement: “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.”
There is another potential theory of the prosecution’s case — that Comey lied to the Senate about authorizing his then-deputy, Andrew McCabe, a central figure in the Russia investigation, to speak to the press for a story about the FBI’s investigation of the Clinton Foundation in 2016.
The best explanation of the weakness of that theory comes from Andrew McCarthy, a former federal prosecutor and my friend and former colleague at National Review. Andy and I clashed frequently when I was at the magazine; we disagreed on the wisdom and merits of the Russia investigation. He thought it was a “disgrace” and wrote an entire book arguing that point.
But he took one look at the Comey indictment and wrote that it was “so ill conceived and incompetently drafted, he should be able to get it thrown out on a pretrial motion to dismiss.” The reason is simple: There is no credible evidence that Comey lied at all.
As McCarthy notes, the indictment may center on confusion as to whether Comey lied when he said that he did not “authorize” his deputy, McCabe, to leak news to The Wall Street Journal that the FBI was investigating the Clinton Foundation.
But there’s no publicly available evidence that supports this claim. Comey told the inspector general that McCabe “definitely did not tell me that he authorized” the leak. McCabe, for his part, told the inspector general’s office that he let Comey know the day <em>after</em> the story broke that he authorized the leak and that Comey “did not react negatively, just kind of accepted it.”
Even if you believe McCabe over Comey — which is inadvisable because the Justice Department’s Office of the Inspector General found that McCabe “lacked candor” about the leak when questioned about it — McCabe only said that he told Comey about the leak after it happened. As McCarthy writes, “McCabe never even claimed that Comey ‘authorized’ the leak as that term is commonly understood.”
Context
It’s important to discuss the details of the case, but we cannot forget the context. The Department of Justice is prosecuting a former director of the FBI, and it’s doing so not because there is clear evidence of a crime, but because there is clear evidence that the president wants revenge.
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Trump’s Truth Social post, in fact, could well be Exhibit A in a motion to dismiss the case. Or it could be one of the first pieces of evidence presented to a jury to show that this case has nothing to do with the truth and everything to do with obeying the orders of the most powerful man in the world.
But it’s even worse than that. Trump’s retribution isn’t just inflicting grave injustice on its innocent victims; it’s hollowing the Justice Department. As decent people resign, they’re replaced with people eager or at least willing to participate in Trump’s partisan inquisition.
When you put it all together, there can be no doubt: Trump’s attack on American justice has taken its next, and most ominous, turn.
“Show me the man, and I’ll show you the crime.” Those infamous words are the hallmarks of a corrupt state. Trump is now openly mimicking the dictators he admires so much. He has shown Bondi the man, and Bondi’s Department of Justice has manufactured the crime.
David French writes a column for the New York Times.
