Topline
Former FBI Director James Comey was indicted Thursday on charges of false statements and obstruction, based on comments he made to Congress in 2020—though evidence from other government investigations undercuts the Trump administration’s allegations.
Comey was indicted on charges of making a false statement to Congress and obstructing a Congressional proceeding, based on an exchange the former FBI director had during his testimony on Sept. 30, 2020.
Comey testified at the time that he had not authorized anyone to leak FBI information to the press, telling Sen. Ted Cruz, R-Texas, he stood by earlier testimony he gave in 2017, when Comey answered “no” after being asked if he had “ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation.”
The indictment alleges Comey’s testimony was “false” because “he in fact had authorized PERSON 3 to serve as an anonymous source in news reports regarding an FBI investigation concerning PERSON 1.”
The indictment’s vague wording makes it unclear exactly what the alleged authorization is that the government has taken issue with, but there are two scenarios that have been raised—though government probes have also undercut both.
Republicans have accused Comey of authorizing former FBI Deputy Director Andrew McCabe to leak information for a 2016 Wall Street Journal article regarding an investigation into the Clinton Foundation, though an inspector general investigation found the “overwhelming weight” of evidence suggested Comey did not authorize the leak.
Republicans have also accused Comey of leaking information through his friend and unofficial spokesman Daniel Richman, a law professor, but an investigation also previously found there wasn’t “sufficient evidence” to suggest Richman or Comey did anything unlawful.
Comey is set to be arraigned on Oct. 9, and is expected to plead not guilty to the charges. He faces up to five years in prison if he’s convicted, the Justice Department has noted.
Comey responded to the charges against him in a video Thursday evening, saying his “heart is broken for the Department of Justice, but I have great confidence in the federal judicial system. And I’m innocent. So let’s have a trial.” The former FBI chief suggested he believed his indictment was a consequence of speaking out against President Donald Trump, saying, “My family and I have known for years that there are costs to standing up to Donald Trump. But we couldn’t imagine ourselves living any other way.”
By all accounts, it’s unlikely. Cruz suggested during Comey’s testimony that Comey authorized leaking information about the Clinton Foundation investigation to the Journal for its article, which was published on Oct. 30, 2016. “So your testimony is you've never authorized anyone to leak? And McCabe, if he says contrary, is not telling the truth, is that correct?” Cruz told Comey. But that doesn’t actually match what McCabe, who did direct aides to share information with the press, has testified. As part of the inspector general’s 2018 investigation into McCabe, the former FBI official testified he “did not recall” telling Comey about the leak before the Journal piece was published. He acknowledged “it’s possible” he did, but said he did not believe he told Comey, because the FBI chief was “very, very occupied” at the time and McCabe had been traveling. McCabe testified he did tell Comey about the leak the day after the piece was already published, and Comey “did not react negatively, just kind of accepted it.” Comey has disputed that account, telling investigators he did not speak with McCabe before the piece was published and that when he did speak to McCabe the day after the piece’s publication, the deputy did not tell Comey he was the one who had authorized the leak. Comey told investigators he “did not authorize [the leak]” and “would not have authorized this,” and he considered the leak to be “problematic.”
While Comey and McCabe’s testimony turns the issue of whether Comey knew about the leak to be a “he said, he said” situation, the DOJ’s Office of the Inspector General concluded in its report that “the overwhelming weight of that evidence supported Comey’s version of the conversation.” The investigators pointed to a substantial amount of circumstantial evidence to support that conclusion, including that Comey had previously refused to confirm the existence of the Clinton Foundation investigation to Congress and had expressed concerns about leaks to the press in a staff meeting right before his conversation with McCabe. That makes it “highly unlikely that Comey, in a discussion with McCabe that same day, would have been accepting of a disclosure authorized by McCabe that looked exactly like the type of leak that he was condemning to his staff,” investigators wrote. The FBI director also likely would have opposed leaking information right before the 2016 election, the investigators concluded, as the FBI was already under fire for speaking publicly about its investigation into Clinton’s private email server. The inspector general’s office said it “concluded that McCabe did not tell Comey on or around October 31 (or at any other time) that [McCabe] had authorized the disclosure of information about the [Clinton Foundation] Investigation to the WSJ. Had McCabe done so, we believe that Comey would have objected to the disclosure.”
Richman has been subpoenaed as part of the government’s investigation into Comey, according to multiple reports, and CNN reports the charges are tied to Richman. The law professor is already known to have spoken with the media on Comey’s behalf, and disclosed Comey’s 2017 dinner with Trump in which the president demanded his “loyalty.” Comey has said he shared memos about his meetings with Trump with Richman, who leaked it to the press, and the government has already declined to bring any charges regarding the memos. If the charges against Comey are tied to Richman, however, it would likely be connected to an investigation known as “Arctic Haze,” in which the government investigated leaks that were published in 2017 articles by the Journal, Times and Washington Post. The Times reported in 2021 that prosecutors had not found any evidence that would justify charging Comey in the probe, however, and an FBI report on the investigation published in the right-wing media similarly concluded, “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.” Richman also testified to investigators that “Comey never asked him to talk to the media,” according to the report, and The Times reports Richman’s more recent interview with the FBI ahead of Comey’s indictment was “not helpful in [prosecutors’] efforts to build a case against Mr. Comey.”
While a grand jury approved two charges against Comey, it declined to indict him on a different false statement charge, which legal experts have noted is historically very rare. That rejected charge appears to stem from a different comment Comey made during his 2020 testimony, when he testified he did not remember getting a lead from the CIA in September 2016 about an investigation into an alleged effort by Hillary Clinton to sabotage Trump’s campaign. Lawfare notes that while Sen. Lindsey Graham, R-S.C., brought up the investigation to Comey during his testimony as if it would have been new in September, other evidence suggested Comey had already been long aware of that probe, which was based on likely fraudulent material. As a result, Comey may have been confused by Graham’s questioning. The former FBI chief also did not outright deny being told about the investigation—which could form a stronger basis for any charges of false statements—but rather only said it did not “ring a bell.”
Trump has cheered Comey’s indictment, exclaiming “JUSTICE IN AMERICA!” on Truth Social on Thursday evening after his longtime adversary was charged. The president went on to call Comey a “dirty cop” on Truth Social in posts Thursday morning and claimed the former FBI chief “LIED” to Congress. “It is not a complex lie, it’s a very simple, but IMPORTANT one. There is no way he can explain his way out of it,” the president claimed. “He knew exactly what he was saying, and that it was a very serious and far reaching lie for which a very big price must be paid!” Trump’s posts did not give any further indication about whether the charges are based on the Richman or McCabe allegations. Trump has long pushed for Comey to be prosecuted, including during the president’s first term, and Comey’s indictment came after the president publicly urged Attorney General Pam Bondi to take action against Comey and other political adversaries of the president, writing on Truth Social, “We can’t delay any longer, it’s killing our reputation and credibility.”
Comey’s indictment is the biggest move yet as part of Trump’s attacks on his longtime rivals, and comes after the president has suggested he wants his political enemies to face “retribution.” The former FBI head was indicted following an overhaul at the U.S. Attorney’s Office in the Eastern District of Virginia, where Comey was indicted, as Trump ousted former U.S. Attorney Erik Siebert amid reports suggesting Siebert did not believe there was sufficient evidence to warrant prosecution against Comey or New York Attorney General Letitia James, another Trump foe. Trump then replaced Siebert with Lindsey Halligan, an attorney with no prosecutorial experience who previously served on the president’s personal legal team. Halligan is the sole prosecutor who signed the indictment against Comey, which came amid reports that even Trump loyalists in the DOJ like Bondi had “concerns” about the strength of the government’s case. Trump suggested Friday that Comey’s indictment could be the first of multiple prosecutions against the president’s enemies, further eroding the traditional separation between the White House and the Department of Justice. “It’s not a list, but I think there’ll be others,” Trump said when asked who was next on his “retribution list.”