Former US FBI director James Comey in 2017. Photo / Matt McClain, The Washington Post
United States President Donald Trump’s push for federal charges against James Comey could become a centrepiece of the former FBI director’s defence, legal experts said at the weekend.
They noted that the President’s intervention in the criminal case and public criticisms of Comey could lead a judge or jury to reject the charges as improperly motivated.
Comey, who was indicted on Friday is the first former senior government official to be charged in Trump’s campaign of retribution against his political opponents, but he may not be the last.
“It’s not a list, but I think there’ll be others,” Trump told reporters on Saturday.
A grand jury on Friday indicted Comey on one count of making false statements during a Senate Judiciary Committee hearing in September 2020 that focused on the FBI’s missteps in its investigation of Russian interference in the 2016 presidential election, and a second count of obstructing the same congressional proceeding.
The indictment came days before the legal deadline to file charges and despite reservations from career prosecutors in the US Attorney’s office in Virginia handling the investigation, who had previously found that the evidence was insufficient to charge the former FBI director.
The grand jury in Alexandria rejected a third count, which also alleged that Comey made false statements at the 2020 hearing.
In the days leading up to the indictment, Trump forced out his appointee as US Attorney in the Eastern District of Virginia, Erik Siebert, a career prosecutor who had determined that the evidence was insufficient to charge Comey with lying to Congress.
The President named a White House aide who previously worked as one of his personal lawyers, Lindsey Halligan, as interim US Attorney, and he took to social media to demand that Attorney-General Pam Bondi seek charges against Comey and others. Days later, Halligan presented the Comey case to the grand jury.
Legal experts said they could not recall another instance in which a president appeared to overrule a Justice Department charging decision.
In a video message after the indictment was returned on Friday, Comey vowed to defend himself at trial.
His lead defence lawyer, Patrick Fitzgerald, a former US Attorney in Chicago, did not respond to requests for comment. A spokesman for the US Attorney’s office in Alexandria declined to comment.
Tim Belevetz, a white-collar defence lawyer at the law firm Ice Miller who previously led the fraud and corruption unit in the Alexandria prosecutor’s office, said Comey’s legal team could seek to dismiss the case before trial.
He could have several routes towards that goal.
One would be to seek to dismiss the indictment on the grounds that his prosecution is politically motivated, legal experts said.
“What Comey’s team would have to show is that either the prosecutor … harboured genuine animus towards the defendant or was prevailed upon to bring the charges by somebody else” for improper reasons such as a grudge or vendetta, Belevetz said.
Trump’s years-long public attacks on Comey, coupled with his demand to Bondi that he face criminal charges, could bolster that argument.
Defence lawyers and former prosecutors said Trump’s recent public statements describing Comey as “corrupt”, “guilty as hell” a “Dirty Cop” and a “total SLIMEBALL” could also jeopardise the prosecution.
The federal judge handling the case could impose sanctions on the government, or potentially dismiss the indictment, if the judge finds that Trump’s comments about Comey would prevent him from getting a fair trial jury, said Liz Oyer, a former chief pardon lawyer at the Justice Department.
Oyer has said she was fired this year because she refused a request from Trump Administration officials that she restore actor Mel Gibson’s gun rights, which were suspended after he was convicted of domestic violence in 2011.
Another possible route to a dismissal involves an irony of the case.
Trump has long railed against the investigation into Russian interference in the 2016 election, accusing the FBI of using underhanded tactics that cast doubt on his victory and consumed much of his first term in office.
But the false-statement charge against Comey involves a different matter - the FBI’s probe of Hillary Clinton’s foundation, which politically benefitted Trump.
At the 2020 hearing, Senator Ted Cruz (Republican-Texas) asked Comey whether he had ever authorised leaks to the news media regarding the Trump-Russia investigation or the investigation into Clinton. Comey said that he stood by previous congressional testimony in which he said that he had not authorised a leak.
The indictment alleges that testimony was false, and that Comey had authorised another person “to serve as an anonymous source in news reports regarding an FBI investigation” into “Person 1”, a reference to Clinton, according to people familiar with the investigation who spoke on the condition of anonymity.
To convict Comey on the false-statements charge, a jury would have to find that he knowingly and wilfully deceived the Judiciary Committee about a material issue in the subject the panel was examining - the Russia investigation.
A judge could find that statements about the Clinton probe were irrelevant to the committee’s work and dismiss the top charge in the indictment. The same line of defence could be used at trial, legal experts said.
If the case goes to trial, the former FBI director could also argue, as he has for years in public, that his Senate testimony was true.
His lawyers could point to a 2018 report by the Justice Department inspector general, which said that the FBI’s then-deputy director, Andrew McCabe, had authorised the disclosure of the Clinton probe to a Wall Street Journal reporter and then “lacked candour” when Comey and other officials asked him about the source of the leak.
The indictment’s second count, obstruction of a congressional proceeding, involves the same testimony but does not focus on specific statements.
Deputy Attorney-General Todd Blanche, in a Fox News interview, dismissed concerns that Trump’s comments were influencing the Justice Department to pursue politically vindictive cases.
“A grand jury heard evidence, over the results of an investigation that lasted a very long time, and the evidence that they considered resulted in an indictment,” Blanche said of the Comey indictment, adding that “the FBI didn’t just make up this charge … There was a thorough investigation.”
Belevetz said he expected the case would eventually go to trial.
Patrick Cotter, a former federal prosecutor who is now at the law firm UB Greensfelder, said judges are usually averse to dismissing indictments.
“The bottom line is that a duly constituted federal grand jury voted these charges, and unless you can put before the court something that suggests the grand jury process itself was tainted … I don’t think most judges are going to simply dismiss the indictment,” Cotter said, adding that he found the charges against Comey to be “appalling”.
Whatever the outcome of Comey’s case, it won’t be the only test of Trump’s power to direct federal prosecutors.
The President has also urged the Justice Department to pursue criminal charges against other perceived political foes, including New York Attorney-General Letitia James (Democrat), Senator Adam Schiff (D-California), former CIA director John Brennan, and John Bolton, Trump’s first-term national security adviser.
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