There is no provable false-statements case against the former FBI director.

T he Trump Justice Department’s false-statement indictment against former FBI Director James Comey is so ill-conceived that the longer one analyzes it, the worse it gets. Plus, it is incoherently drafted, such that it fails to fulfill an indictment’s constitutional purpose; namely, to put the defendant on notice of what the government alleges he has done to violate the law.

As I observed after the charges were made public, the remaining false-statement charge (as opposed to the one the grand jury rejected) is unclear, to the point that one had to pore over the transcript of Comey’s Senate testimony and consult press reports to decipher the supposedly illegal conduct.

The first thing to notice, especially since we’ve been using the shorthand “perjury” to describe the allegation, is that the charge is not perjury. It is false statements. Perjury is lying under oath. The main federal perjury statute, Section 1621 of the penal code (Title 18, U.S. Code), does not mention testimony before Congress. The statute is broad and there have been cases involving congressional testimony. The Justice Department, however, charged the case under the broad false-statements statute, Section 1001, which incontestably covers congressional testimony. In this instance, it probably makes no difference. Comey was under oath, but Section 1001 applies even if there is no oath.

Section 1001, like Section 1621, requires the heightened criminal-intent standard that the false statement be willful. This means the government must prove beyond a reasonable doubt that the defendant not only made the statement deliberately but with knowledge that the statement was untrue and that his conduct was unlawful. That is significant in this case because the allegation is so vague that analysts knowledgeable about the criminal law and Comey’s testimony are still speculating about what specific statements are at issue.

As you read speculation about the FBI official whom Comey allegedly authorized to be a media source — this could be the bureau’s then–Deputy Director Andrew McCabe, Columbia law professor and FBI contractor Daniel Richman, or some other FBI-connected person who hasn’t yet been revealed (or whom the Justice Department itself hasn’t yet identified) — understand: There can be no “gotcha” false-statements or perjury prosecution. Knowingly providing false information to a government investigation is a serious felony because the defendant has acted with an intent to deceive, knowing what he was doing was criminal. The case can’t be proved if there’s any ambiguity about what was being asked. Ambiguity makes it impossible to establish that the defendant was being willfully deceptive.

The indictment must be clear about what the defendant allegedly did. Even more basically, in a false-statements case, the relevant questions and answers have to show that the defendant knew exactly what he was being asked, such that it might be rational for a jury to conclude that he willfully lied.

Now, I’ll repeat what I outlined on Friday about what the indictment charges. Comey is said to have lied to the Senate

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]

I highlighted “authorized” because what Senator Ted Cruz was specifically asking Comey about was whether he’d authorized McCabe to leak investigative information to the Wall Street Journal. That would be an invalid basis for a false-statement charge because no one, not even McCabe, claims that Comey authorized McCabe to orchestrate that leak. That is to say, (1) McCabe concedes that he did not speak with Comey about the leak until after the WSJ published the story at issue (about the FBI’s Clinton Foundation investigation), and (2) the Justice Department’s inspector general found that McCabe was lying when he claimed to have told Comey about his role in the leak.

There’s more to the story, which I laid out on Friday. The bottom line is: It’s inconceivable that a false-statement charge against Comey could rest on an allegation that he authorized McCabe to leak to the WSJ. There is no evidence of that, period. The Trump Justice Department, including novice prosecutor Lindsey Halligan, clearly knows this. That is no doubt why prosecutors added a second paragraph in hope of saving the case, to wit:

That statement [that Comey had not “authorized someone else at the FBI to be an anonymous source in news reports”] was false, because, as [Comey] then and there knew, he in fact had authorized PERSON 3 to serve as an anonymous source in news reports regarding an FBI investigation concerning PERSON 1.

Now, for what follows, we need to get some terms straight.

There is no doubt that “PERSON 1” is Hillary Clinton. We know that because of the false-statement count that the grand jury rejected (which I discussed here). That proposed charge referred to “‘PERSON 1’s approval of a plan concerning PERSON 2 and the 2016 Presidential election.” This was a reference to Hillary Clinton’s (PERSON 1’s) strategy to frame Trump (PERSON 2) as a Kremlin mole. The identity of PERSON 1 is crucial. Remember, Comey is charged with having authorized an FBI person to be an anonymous source in news reports “regarding an FBI investigation concerning PERSON 1” (emphasis added). The leak therefore has to be about Hillary Clinton.

There is a great deal of speculation in the media about whether Comey authorized Richman or others to leak information to the media. No matter what you think of that, the indictment says the leak at issue has to be about Clinton (PERSON 1). Hence, if you’re focused on, say, Comey’s leaking of the report he wrote about his conversation with President Trump regarding the investigation of General Michael Flynn, that can’t be relevant to this indictment. I happen to agree that Comey’s choreographing of the leak to the New York Times of his conversations with Trump was egregious. But those conversations were not about Hillary Clinton. Even if you think Comey deserved to be charged for that leak (which the Justice Department in the first Trump administration declined to do, despite the DOJ inspector general’s quite justifiable condemnation of Comey’s misconduct), that’s not this case. Because of the way the indictment is written, if the leak is not about Clinton, it’s irrelevant.

That brings us to PERSON 3. There is a strained theory that PERSON 3 is McCabe, because McCabe is central to the incident Cruz questioned Comey about — the Clinton Foundation leak to the WSJ. That doesn’t make sense. For the reasons already detailed, Comey did not authorize McCabe to leak information to the WSJ. Furthermore, McCabe is the FBI official described in the indictment (excerpted above) as “someone else at the FBI,” so there would be no reason to denominate him as “PERSON 3.”

This lends credence to the speculation that PERSON 3 is Richman, the Columbia professor and former federal prosecutor. (He’s a longtime friend of Comey’s and mine from when we all started out as Southern District of New York prosecutors in the 1980s.) When Comey was FBI director, he hired Richman as a consultant — technically, a “special government employee” for the FBI — for a little over a year and a half, from June 2015 to February 2017.

Let’s bear in mind that two things have to be proven true for the indictment to stand. First, the leak Comey allegedly authorized has to be about Hillary Clinton. Second, Comey has to have authorized “someone else at the FBI to be an anonymous source in news reports” (emphasis added).

There is no doubt that, in May 2017, Comey authorized Richman to be an anonymous source for the New York Times regarding Comey’s 2017 conversations with President Trump. But (1) at that point, Richman was not “someone else at the FBI” (his consulting contract having ended in February), and (b) in any event, the memos Comey leaked through Richman were not about Clinton.

There is one area pertinent to Hillary Clinton that remains to be considered. During Richman’s tenure as Comey’s consultant (when Richman had a high security clearance), Comey apparently shared with Richman intelligence suggesting that Loretta Lynch, Obama’s attorney general, was politically compromised and would thwart the FBI’s investigation into Clinton’s emails. Our government’s intelligence agencies eventually concluded that this intelligence was Russian disinformation (and it is to Comey’s great discredit that he relied on it in his decision to go public with the evidence the FBI had collected in the investigation, even though Clinton was never charged).

Richman has publicly conceded that, upon being contacted by a New York Times reporter, he discussed this subject. He maintains, nevertheless, that he does not believe that he disclosed any intelligence (he has said the Times reporter seemed to know more about the matter than he did). More to the point, he says that Comey never authorized him to be an anonymous source for the media regarding that intelligence — to the contrary, he has told government investigators that Comey regarded this intelligence as extremely sensitive and not to be discussed. The government appears to have no evidence to rebut this claim; certainly, the DOJ has not claimed otherwise in the indictment.

To summarize, then: When Richman was an FBI official, he was not authorized by Comey to discuss Hillary Clinton (i.e., Lynch’s possibly being compromised regarding the Clinton investigation). And when Richman did leak for Comey, he was not an FBI official, and the leak was not about Hillary Clinton.

To summarize, there is no provable false-statements case against Comey. Regardless of whether PERSON 3 is deemed to be McCabe or Richman, there is no factual basis for a claim that Comey authorized one of them to disclose to the media any FBI investigative information regarding Hillary Clinton.

Moreover, Cruz’s questions to Comey patently pertained to McCabe. Ergo, Comey was not on notice that he might have been asked about whether he’d authorized other FBI officials to leak information about Clinton. Quite apart from the lack of evidence that Comey authorized such leaking, there is no way the government could prove beyond a reasonable doubt that Senator Cruz was asking Comey about someone other than McCabe, much less that Comey understood that Cruz was doing so and willfully lied about it.

The indictment is inadequately pled and factually without foundation. It should be dismissed.