Dem
47
GOP
53
Donald Trump and James Comey have a turbulent history, to say the least. Unlike Trump, Comey is a lifelong Republican. As FBI director, he was relatively unknown until July 5, 2016, when he held a press conference announcing that Hillary Clinton's use of a private e-mail server was stupid and careless but she didn't violate any actual statutes, so she couldn't be prosecuted. It is absolutely unheard of for the FBI to make an announcement like this when no charges are being brought. Trump was angry that Clinton wasn't being indicted and Clinton was angry that he held a press conference about her when she hadn't committed any crimes. Being sloppy is not a crime. Then, 11 days before the election, Comey came back and said: "We found more e-mails." Nate Silver thought this announcement probably cost Clinton the election. Two days before the election (after early voting was underway in many states), Comey said there was nothing important in any of the new e-mails. One might think Trump would suddenly decide that Comey was his new best friend. But Trump doesn't have friends.
After Trump was sworn in as president, the two continued to meet regularly. Trump told him that he expected loyalty. Instead, in March of 2017, Comey announced that he was investigating whether the Trump campaign worked with anyone in Russia during the campaign, something that would be illegal. A few weeks later, Comey was at the FBI's Los Angeles office when he saw a headline on TV: COMEY FIRED.
It was downhill between Trump and Comey from there on. Comey testified before Congress on June 8, 2017, and said what he had to say. Still, the Republicans called him back to testify again on Sept. 30, 2020, even after he had been a private citizen for 3 years. The Republicans were clearly out to get Comey, on Trump's orders. On account of the pandemic, Comey testified from his home in Virginia.
During that hearing, Sen. Ted Cruz (R-TX) asked Comey if he had leaked information about the Russia probe or authorized anyone else to do so. In a somewhat roundabout way, Comey said no. The DoJ considers this statement to be a lie, and that lie to Congress forms the basis of its indictment of Comey. He is also charged with obstructing Congress (by lying to it).
Yesterday, Comey pleaded not guilty and asked for a trial by jury. If convicted, he could get 5 years in prison and a fine of $250,000. Judge Michael Nachmanoff, a Joe Biden appointee, set a trial date of Jan 5.
The fact that Comey testified from his home in 2020 (in Virginia) is now important. Trump asked the (interim) U.S. attorney for the eastern district of Virginia, Erik Siebert, to indict Comey. He refused and Trump forced him to resign. Trump then appointed his personal lawyer, Lindsey Halligan, an insurance lawyer with no experience as a prosecutor, to replace Siebert. She signed the indictment alone. Normally, the assistant U.S. attorney who actually did the work cosigns it. Clearly, no assistant U.S. attorney in the office was willing to stick his or her neck out.
The prosecution is going to base its case on a claim that Comey authorized Columbia law Professor Daniel Richman, a friend of Comey's, to leak the information. The only problem here is that Richman has already said Comey did not authorize him to leak anything. It could be hard to convince a jury beyond a reasonable doubt that Comey told Richman to leak the information if under oath Richman says Comey gave him no such instructions. To win the case, Halligan has to prove to the jury that Comey told Richman or someone else to leak. If she can't produce someone who testifies that Comey told him or her to leak, there is no case. This is why Siebert didn't want to indict Comey. He knew he would lose in court.
The prosecution also went through all of Comey's old e-mails to find evidence of leaking and couldn't find anything. Comey is asking the judge to throw the whole case out because there is no evidence he lied to Congress. It is up to the judge to decide whether the case should go forward. He could just throw it out as baseless, or even as a malicious prosecution.
The defense has a two-pronged strategy. First, there is no actual evidence that Comey authorized anyone to leak, so when he told Congress he didn't authorize anyone, he was telling the truth. If he was telling the truth, there is no case. Second, the defense will challenge whether Halligan was legally the U.S. attorney when she signed the indictment. This is very weedy but legally important. Simplified, Siebert was an interim U.S. Attorney and was never confirmed by the Senate. After his 120-day term expired, Trump had no authority to appoint Halligan as a new interim, but he did it anyway. The judge could rule that since Halligan was not duly appointed, everything she signed is null and void. Trump can't start all over again because the statute of limitations for Comey's alleged crimes just expired.
Does Trump care? A conviction would be the icing on the cake, but his real goals in prosecuting Comey are: (1) feeling good, (2) distracting the media from the Epstein files, and (3) forcing Comey to spend a lot of money on lawyers. Of course, if the judge tosses the case in November, there go (1) and (2). We don't know if Comey has tried to raise funds for (3), but we suspect if he did, he would be quite successful at covering his attorneys' fees. (V)