Comey was permitted to surrender voluntarily pursuant to a summons. There was no occasion to arrest him much less parade him about in cuffs or leg-irons.
As our James Lynch reports, former FBI Director James Comey was arraigned in Virginia federal court this morning, entering pleas of not guilty to the false statements and obstruction charges in the Trump Justice Department’s indictment. Arraignments are usually brief, uneventful affairs: The defendant enters a plea (usually not guilty), the judge sets a schedule for pretrial motions and trial, and if bail needs to be set or there is any issue relating to the defendant’s pretrial release, that is addressed.
The prosecution of Comey is an unusual case, so as we might have expected, there were some developments worth noting. I’m going to take them up in four posts, starting with this one. Let’s start with the perp walk . . . or lack thereof.
There was online chatter over the weekend anticipating that Comey would be arrested and “perp-walked.” That did not happen — and it was highly unlikely to happen, notwithstanding President Trump’s social media post demanding a perp walk. (Even by Trump standards, this was remarkably foolish. As we shall see, the president is basically writing Comey’s motion to dismiss the indictment based on selective prosecution and political vindictiveness.)
It has been widely reported that Comey was issued a summons to appear in court (originally on October 9, then moved up to this morning). Rule 9(a) of the Federal Rules of Criminal Procedure (Fed.R.Crim.P.) calls for the court to issue an arrest warrant when an indictment is returned (meaning agents may hunt down the defendant and take him into custody). But there’s an exception: the court may issue a summons, a more benign directive that allows the defendant to voluntarily appear in court for his arraignment, but only if the prosecutor asks for a summons instead of an arrest warrant.
When I was a prosecutor in the Southern District of New York, it was customary to have the court issue an arrest warrant — that’s the rule’s preference, and it doesn’t prevent the prosecutor agreeing with defense counsel that the defendant may surrender voluntarily rather than be apprehended. I don’t know if the Eastern District of Virginia (EDVa) follows a different practice. As we’ve noted, Lindsey Halligan, the former insurance lawyer and White House staffer Trump installed as interim EDVa U.S. attorney, had never prosecuted a criminal case before indicting Comey. Based on Rule 9(a), I have to assume she agreed to the issuance of a summons rather than an arrest warrant — if she asked for a warrant and the request was denied, I have not seen that reported. (Halligan was Trump’s pick to replace Erik Seibert, the highly experienced interim EDVa U.S. attorney he’d originally appointed, who declined to indict Comey.)
A summons is a demand to appear in court. If, after the president’s perp walk post, the Trump Justice Department had suddenly asked Judge Nachmanoff to issue an arrest warrant so they could parade him around in handcuffs and leg-irons, that would have looked terrible. Trump officials often don’t seem concerned with the look of things if they happen to be things the president desires, but trying to arrest and perp-walk Comey under these circumstance would have been suicidal for Halligan in terms of her standing with Nachmanoff and the other EDVa judges.
No one knows this better than President Trump. As abusive as much of the Democrats’ lawfare campaign against him was, in each case, though he was not in office at the time, he was permitted to surrender and be processed, rather than arrested and cuffed.
I presume that after this morning’s brief court appearance (possibly before), Comey reported to government offices to be processed by the FBI and the court’s pretrial services division (fingerprints, photographs, providing other personal information, etc.). All indicted defendants go through that procedure, and there is no requirement that the defendant be placed under arrest if he has agreed to be cooperative.