It’s an incomprehensible case.

J im Comey has a dilemma.

The vindictive indictment the Trump Justice Department barely managed to get a grand jury to approve on Thursday is so ill-conceived and incompetently drafted, he should be able to get it thrown out on a pretrial motion to dismiss. Legally, he’ll be entitled to that, and it would short-circuit the very expensive and punitive litigation process.

Yet, the case has been randomly assigned to a Biden-appointee in the Eastern District of Virginia, Judge Michael Nachmanoff. If Judge Nachmanoff throws the case out pretrial, President Trump and his supporters will rail that the fix was in. So as pointless as a trial would be, Comey and the court may want the vindication of a swift jury acquittal.

It’s a hard call. But it’s not a hard case. It’s a mess.

It is widely reported that the perjury charge that the grand jury approved — as opposed to the one that the grand jury voted down — deals with Comey’s interaction as FBI director with his then-deputy director, Andrew McCabe, in connection with a leak to the Wall Street Journal regarding the FBI’s Clinton Foundation investigation. We must resort to reporting about what’s in the indictment, rather than just reading the indictment itself, because the charge is so poorly drafted that it’s not entirely clear what Comey is alleged to have lied about.

The indictment does not mention McCabe or Hillary Clinton, who are referred to as “someone else at the FBI” and “PERSON 1.” That’s not unusual since McCabe and Clinton are not charged in the case. Yet, also missing from the indictment is any description of the incident involving McCabe, Clinton, and Comey out of which the perjury charge supposedly arises.

In pertinent part, Count One says that Comey made a materially false statement in Senate Judiciary Committee testimony on September 30, 2020,

by falsely stating to a U.S. Senator . . . that he . . . had not “authorized someone else at the FBI to be an anonymous source in news reports” regarding an FBI investigation concerning PERSON 1. [Emphasis added.]

This appears to refer to a leak McCabe admitted that he directed his special assistant, Lisa Page, to provide to Devlin Barrett, then a reporter at the WSJ (he’s now at the New York Times). The leak, about a week before the 2016 election, was to push back against reporting that had suggested the FBI was going easy on Clinton: Barrett was told about a tense conversation between McCabe and a top Obama Justice Department official, Matthew Axelrod, in which McCabe resisted pressure from the Obama DOJ to stifle investigative activity regarding the Clinton Foundation. By orchestrating this leak, McCabe caused the FBI to acknowledge the existence of that investigation, which was against FBI protocol and which Comey himself had declined to do, even in prior congressional testimony.

I wrote about this incident when Michael Horowitz, then the Justice Department’s inspector general, issued a scathing report about McCabe’s lack of candor and referred him to the Justice Department (in Trump’s first term) for a potential false statements prosecution. (As I said in following up, I believe McCabe should have been indicted, see, e.g., here and here.)

Now, put aside that McCabe, whom the perjury case against Comey appears to hinge on, is not a credible witness, particularly on this subject. Put aside that, having evaluated the conflicting versions of events offered by McCabe and Comey, IG Horowitz found that Comey’s account that he did not approve the leak was overwhelmingly corroborated while McCabe’s account was full of holes. Even without that, the indictment fails on its own terms because McCabe never even claimed that Comey “authorized” the leak as that term is commonly understood.

The person responsible for much of the confusion on this is Senator Ted Cruz (R., Texas), who interjected the word “authorize” in his questioning of Comey at the hearing. Here is the exchange (my highlighting):

Cruz: On May 3, 2017, in this committee, Chairman [Chuck] Grassley [(R., Iowa)] asked you point blank, “Have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?” You responded under oath, “Never.” He then asked you, “Have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation?” You responded again under oath, “No.” Now, as you know, Mr. McCabe, who works for you, has publicly and repeatedly said that he leaked information to the Wall Street Journal and that you were directly aware of it and that you directly authorized it. Now, what Mr. McCabe is saying and what you testified to this committee cannot both be true. One or the other is false. Who’s telling the truth?

Comey: I can only speak to my testimony. I stand by the testimony you summarized that I gave in May of 2017.

Cruz: So your testimony is you’ve never authorized anyone to leak? And Mr. McCabe, if he says contrary, is not telling the truth, is that correct?

Comey: Again, I’m not going to characterize Andy’s [McCabe’s] testimony, but mine is the same today.

Now, in this context, authorize is commonly understood to mean that a person gave permission for some course of action. McCabe, however, doesn’t claim to have asked Comey for permission to leak information to the WSJ. To be clear, I don’t think McCabe’s version is credible (and neither did Horowitz, who found that he was dishonest in his dealings with Comey regarding the leak). But my point is that McCabe never claimed what Cruz says he claimed. McCabe, who had his own authority as deputy director to order a subordinate to disseminate investigative information, asserted that he himself directed the leak and then told Comey about it after the fact.

Here is how Horowitz described McCabe’s version of events in his report (p. 12) (my highlighting):

Comey discussed the October 30 WSJ article in person on October 31, 2016, when McCabe returned to the office from a trip [deleted]. McCabe said that he told Comey that he had “authorized AD/OPA [Peter Strzok] and Special Counsel [Lisa Page] to disclose the account of the August 12th call” and did not say anything to suggest in any way that it was unauthorized. McCabe told us that Comey “did not react negatively, just kind of accepted it.” McCabe also told us Comey thought it was a “good” idea that they presented this information to rebut the inaccurate and one-sided narrative that the FBI was not doing its job and was subject to DOJ political pressure, but the Department and PADAG [Axelrod] were likely to be angry that “this information made its way into the paper.”

McCabe told us that he did not recall telling Comey prior to publication of the October 30 article that he intended to authorize or had authorized Special Counsel and AD/OPA to recount his August 12 call with PADAG to the WSJ, although he said it was possible he did. When asked why he did not discuss it with the Director in advance, McCabe said the Director was “very, very occupied” at the time with the Weiner laptop issue. [ACM: a reference to newly discovered evidence that had caused Comey to reopen the Hillary Clinton Emails investigation.] McCabe told us that if he had not been out of town, he would have talked to Comey about the disclosure in advance because it involved a significant issue. When questioned by the OIG as to whether, as Deputy Director, he had the capability to reach Comey wherever he was and whenever he needed, McCabe acknowledged that he did but added it was challenging to do so between October 27 and 28, given the Weiner laptop issue and the fact that Comey told him he did not want to discuss that issue with him.

To repeat, Comey disputed that McCabe told him, before or after the fact, that he (McCabe) had authorized the leak — he says that when they discussed the WSJ article, Comey was upset about it and McCabe acted like he’d had nothing to do with it (which is consistent with the fact that, after causing the leak, McCabe dressed down agents in New York over the leak — suggesting that they were responsible for it in order to divert attention from himself). Like Horowitz, I believe it’s obvious that Comey was telling the truth about that. For present purposes, however, it makes no difference.

In his testimony, Comey obviously understood Cruz to be asking whether Comey had authorized McCabe to leak to the WSJ prior to the McCabe’s doing so. But McCabe had never said Comey authorized the leak; McCabe said that he himself authorized the leak and told Comey about it afterwards, and that Comey didn’t seem to have a problem with it. McCabe probably lied about telling Comey post facto and about Comey’s not having a problem with the leak; but the point is that McCabe didn’t say Comey authorized the leak — he said he informed Comey afterwards.

A rational juror could not convict Comey of perjury on that record. Cruz garbled what is meant by the word “authorize”; McCabe didn’t claim Comey authorized the leak; ergo, there is no evidence — much less proof beyond a reasonable doubt — that Comey was lying when he told Cruz he hadn’t authorized McCabe’s leak.

The indictment should be dismissed because there is no factual basis for a perjury charge and because the second count, obstruction, hinges on the perjury charge. I’m sure Comey would rather have a jury clear him, but this baseless case should never see a trial court.

In a separate post, I will address the ridiculous perjury allegation for which interim U.S. attorney Lindsey Halligan sought an indictment only to be rebuffed by the grand jury.