Considering the possibility of a superseding indictment and the implications of the obstruction charge.
After writing about the Jim Comey false statement indictment (here and here), I spent much of the weekend perusing charges and the commentary about them. On the right, the latter dwells more on Russiagate, over which people are deservedly angry at Comey’s tenure as FBI director, than on the charges themselves, which are substantively unrelated to Russiagate.
As a result, we’ve posted a piece today in which I walk through why the charges are factually and legally flawed. In sum, the post deals with (a) the speculation about who “PERSON 3” is, (b) how the Trump Justice Department has boxed itself in by pleading that the FBI leaking at issue pertains to “PERSON 1” (Hillary Clinton — as opposed to others Comey has been accused of leaking about over the years), and (c) how the heightened mens rea requirement of willfulness means there can’t be a “gotcha” false statements case — i.e., the issue is what Comey reasonably understood he was being asked about (the McCabe leak to the WSJ), not whether prosecutors can shoehorn into the mix other matters about which Comey had allegedly been deceitful but to which Senator Cruz’s questions did not allude (e.g., Comey’s leaking of memos about conversations with President Trump).
Two other matters are worth addressing.
- Can the Indictment Be Superseded?
There has been some discussion about whether the flaws in the indictment can be fixed by a superseding indictment. Ordinarily, I would say: absolutely. But not in this case. The reason why is the statute of limitations.
Usually, prosecutors indict fairly close to the time of the crime. Since the statute of limitations for most federal offenses is five years, that leaves plenty of time to correct errors or even make drastic changes in the prosecutorial theory of the case. (There are strategic downsides to doing that, but the law permits it to be done.) But the expiration of the statute of limitations period closes the government’s window to add new charges — and, analogously, to modify the original charge with a superseding indictment that materially changes it.
If the statute of limitations period has expired, prosecutors may supersede an indictment only to make minor adjustments that don’t alter its substance. The government, for example, would not be permitted to change what statements Comey made that were allegedly false, whom he allegedly authorized to leak to the media, and about what (or whom) he allegedly authorized such a person (here, an FBI official) to leak.
If the charges are to stem from Comey’s Senate Judiciary Committee testimony on September 30, 2020, then the five-year statute of limitations period ends tomorrow (September 30, 2025).
There is good reason to believe that, if they are determined to make a case against Comey (and the president has made sure of that), then prosecutors are stuck with that five-year-old testimony. Trump wants Comey indicted over actions Comey took as FBI director; but since Trump fired Comey from that post in May 2017, those actions are more than five years old, so charges arising from them are time-barred. Prosecutors thus landed on the 2020 Senate testimony because it referred back to, and reaffirmed, testimony Comey gave in 2017. But because of the statute of limitations, they can only reach the matter to which his 2020 testimony referred back — namely, his denial that he had authorized other FBI officials to be anonymous sources for news stories. Other activities untouched upon by the 2020 testimony remain time-barred for prosecution purposes.
If interim Eastern District of Virginia U.S. attorney Lindsey Halligan wanted to overhaul the indictment completely, she could still do so . . . as long as she does it by sometime Tuesday. After that, she will not be able to supersede the indictment in a way that changes its substance. (And if you’re not going to change the substance of a flawed charging document, what would be the point of superseding?)
- Obstruction Charge
Some have suggested that the Justice Department can still develop a wider-ranging case against Comey because its indictment added a second count — obstruction of a congressional proceeding. I said last week that I didn’t think this would work because the way the indictment is worded locks prosecutors into false statements.
Obviously, there are many ways other than perjurious testimony to obstruct a proceeding. A person could tamper with witnesses. He could destroy, conceal, or manipulate physical evidence. But Halligan did not make any such allegations against Comey; instead, she charged that he obstructed Congress “by making false and misleading statements before the committee.”
That is, by its own terms, the indictment limits the government to proving obstruction by showing that Comey made false statements in the Senate testimony. That is exactly what Count One — the false statements charge — alleges. If the government had evidence that Comey had made false statements in his testimony besides the false statement prosecutors alleged (inadequately) in Count One, there would have been more false statements charges.
Consequently, I believe the obstruction charge was added for no reason other than to double Comey’s potential statutory sentence from five to ten years.
The false statements charge under Section 1001 carries a potential five-year prison sentence. So does the obstruction charge under Section 1505. If prosecutors could prove that Comey gave false testimony (Count One), it would be a lock that the jury would also find obstruction (Count Two). Hence, by adding the latter, Halligan effectively doubled Comey’s sentencing exposure. That, however, does not mean there is a discrete package of proof related to obstruction, different from the false statement evidence.
It’s the same theory — false testimony — so the two charges rise or fall together.