The irony is that no one on earth, not even Donald Trump himself, is more responsible for Trump’s presidency — now in its second term — than Jim Comey.
T he irony is that no one on earth, not even Donald Trump himself, is more responsible for Trump’s presidency — now in its second term — than Jim Comey. Personally, Comey would rather have been responsible for the plague, such is his loathing of Trump. Because the feeling is mutual, there is a chance the former FBI director could be indicted, as early as today.
Against the judgment of Erik Siebert, the detached, experienced prosecutor he first hand-picked then fired, Trump is demanding that the Justice Department indict his bête noir. This is vengeance — lawfare, not law enforcement. And to repeat what I argued in an essay in National Review magazine on Trump’s impeachable leveraging of the justice system against his political enemies, the main objective of lawfare is ruin, not criminal convictions or civil judgments: “Lawfare makes the process the punishment. Trump’s targets will be put through the wringer to which he was subjected: searches, audits, legal fees, and constant anxiety.”
In this instance, that will be ironic, too. If Comey is indicted in the next few days, it will be over suspicions that he choreographed an October 2016 leak to the New York Times that helped land Trump in the Oval Office.
I wrote about the incident in Ball of Collusion. On Halloween 2016, about a week before the 2016 election, the left-wing journalist Franklin Foer published a report in Slate strongly suggesting that candidate Trump had established a communications backchannel with the Kremlin, involving servers at Trump Tower in Manhattan and Alfa Bank, one of Russia largest financial institutions.
Within hours on the same day, the New York Times published its report, “Investigating Donald Trump, F.B.I. Sees No Clear Link to Russia.” The Times report related the FBI’s conclusion that there was nothing to the backchannel claim (a conclusion that was ultimately echoed by special counsel John Durham’s Russiagate probe, and which served as the background of Durham’s unsuccessful prosecution of Democratic lawyer Michael Sussmann, which we covered extensively at NR).
More broadly speaking, the Times report also detailed that the bureau’s counterintelligence investigation of Russia’s malevolent activities in connection with the 2016 campaign — in particular, what was believed to be its hacking of Democrats’ computers — were not linked to Trump and his campaign. The consensus conclusion was that Russia was trying to harm the United States by sowing doubt about the integrity of our elections.
During the first Trump administration, Durham led a Justice Department probe of the leaks to the Times in connection with the October 31, 2016, story. It was investigated as what the FBI refers to as a “UPD” — an unauthorized public disclosure of classified information. The probe was called “Tropic Vortex” (don’t ask me where or why the government comes up with these goofy names; I’ve never understood why they don’t just use numbers.) The stellar reporter Catherine Herridge has posted the closing memorandum for the probe, dated February 25, 2020. (See here, beginning at page ten of the compiled documents.) Durham was assisted in the probe by the United States Postal Inspection Service (USPIS) because FBI officials were subjects.
There were two major government sources for the story. As the report asserts, one of them was James Baker, who at the time of the leak was the FBI’s general counsel and a close adviser to Comey. Baker explained to investigators that he had been “under the belief” that he was “ultimately instructed and authorized to [provide information to the Times] by then FBI Director James Comey.” Baker, however, does not appear to have claimed that Comey gave him a direct order (which seems odd since Baker was an important member of Comey’s leadership team). Rather, “Baker indicated that FBI Chief of Staff James Rybicki instructed him (Baker) to disclose the information to the NYT, and Baker understood Rybicki was conveying this instruction and authorization from Comey.”
Beyond that, most of the remaining pertinent information about the investigation is classified. The closing memo is thus cryptic and partially deleted, but what’s revealed tells us that Durham closed the probe with a recommendation of “NO prosecution of Baker or anyone else for this UPD.” This makes sense given that (a) the FBI hierarchy had declassification authority, (b) Baker’s belief that he was acting with authority was reasonable (and probably correct), (c) it would thus have been impossible to prove criminal intent, and (d) there was no harm done to national security.
So why is this ancient history, already covered time and again, back in focus?
Because on September 30, 2020, appearing under oath as a witness before the Senate Judiciary Committee over three years after Trump fired him as FBI director, Comey reaffirmed his prior testimony (from 2017) that he had never authorized anyone at the FBI to leak information to the press pertaining to the investigations of either possible collusion between Trump and Russia, or Hillary Clinton’s use of an unauthorized email system.
The statute of limitations for a perjury charge is five years, meaning that any allegation arising out of the Senate testimony must be indicted by September 30, 2025 — i.e., next Tuesday. Grand juries often meet two days a week (e.g., Tuesday and Thursday), and prosecutors don’t like to wait until the final day (because if something prevents a quorum of the grand jury from attending a session, or some other problem prevents an indictment from being presented, the statute of limitations lapses). That is why there is speculation that an indictment could be returned as soon as today.
If what’s been reported is the case against Comey, an indictment would be absurd. That is no doubt why Siebert, Trump’s own former nominee to be U.S. attorney for the Eastern District of Virginia (EDVa) declined to bring the case. That, along with Siebert’s reluctance to indict a similarly weak case against Letitia James (the New York attorney general who sued Trump for fraud), is why the president fired him last week. Knowing why Siebert did not believe there was sufficient evidence to indict Comey, Pam Bondi and Todd Blanche, Trump’s attorney general and deputy attorney general, nevertheless urged the president not to remove Siebert. But Trump would not relent.
It has now been reported, moreover, that the EDVa prosecutors working the Comey investigation have given Trump’s newly appointed interim U.S. attorney, Lindsey Halligan, a memo detailing why the case is too weak to charge. Halligan, a 36-year-old former insurance lawyer, has never prosecuted a criminal case.
However this ends, it is remarkable. The 2016 leak, if Comey had anything to do with it, appeared to clear Trump of wrongdoing and harpooned the Clinton campaign’s narrative that Trump was a puppet of Vladimir Putin. Combine that with two other facts: The preceding July, Comey had violated Justice Department rules by going public with the condemnable evidence of Clinton’s mishandling of classified information; and just prior to the Halloween Times report (i.e., on the virtual eve of the election), Comey had announced that he was reopening the criminal investigation of Clinton (he closed it again a few days later).
As awful a candidate as Clinton was, she appeared in 2016 to be cruising to victory over Trump. Comey wasn’t trying to help Trump — far from it. But in his hubris, he outsmarted himself.
Based on likely Russian disinformation suggesting that Obama’s attorney general, Loretta Lynch, was compromised in Clinton’s favor, Comey rationalized publicizing the evidence against Clinton — figuring she would win anyway and the transparency would help the bureau’s reputation; simultaneously, his recommendation against charging Clinton would put the misadventure behind her.
As the campaign wound down, with all polls indicating a Clinton victory, Comey reopened the Clinton investigation — hoping to protect the FBI from any allegation that it had buried newly discovered evidence (emails stored on a computer shared by Clinton aide Huma Abedin and her then-husband, Anthony Weiner). Again, Comey calculated that Clinton was going to win, so briefly reopening the case wouldn’t do her material harm, and then quickly closing the investigation would let her begin her anticipated administration with a clean slate.
Similarly, the Times story, regardless of whether Comey had anything to do with it, was an effort to tie up the Russia loose ends — which would never again have been spoken of if Clinton had won, as Comey and all the other smart people just knew she would
The agglomeration of Comey interventions was a big part of what resulted in the Trump presidency, even if that was the opposite of what Comey personally desired. And now Trump appears poised to use the power of the presidency to indict Comey. I hope that doesn’t happen, but that’s the way the wind is blowing.