The gaping hole in the James Comey indictment

On Thursday night, the Justice Department indicted former FBI Director James Comey — accusing him of having lied to Congress during sworn testimony.

For me, a journalist who covers declining democracies, this set off some pretty obvious alarm bells. President Donald Trump had already openly called on Attorney General Pam Bondi to prosecute Comey, one of his most prominent critics, but there she was hampered by what looked like a total lack of evidence. Just this morning, ABC News reported that attorneys in Virginia’s Eastern District had investigated Comey for two months but found insufficient cause to support an indictment. That such an indictment was filed anyway feels a lot like a vindictive effort by an authoritarian president to wield law against his enemies.

But hey, I thought — maybe I was being unfair to Lindsey Halligan, the federal prosecutor for the Eastern District of Virginia. Maybe ABC was wrong, and there really was damning evidence that Comey committed a crime.

So I read the indictment. And wow, is it worse than I thought.

The indictment is very short — just two pages. I’ve uploaded it below, and I’d recommend you read it all before we proceed.

The first count alleges that Comey knowingly lied to the Senate in September 2020, when he said that he had not “authorized someone else at the FBI to be an anonymous source in news reports” in regards to an investigation into an unnamed party described as Person 1 (who, given the context of the hearing, is mostly likely Trump). The indictment claims that he in fact did authorize someone to be an anonymous source to the media about this person, and thus lied to Congress.

And that’s it. There’s no explanation of what Comey was talking about during the hearing, why federal prosecutors believed him to be lying — nothing. Just a simple assertion that Comey lied.

The second count of the indictment is even more vague. It alleges Comey “did corruptly endeavor to influence, obstruct and impede the due and proper exercise of the power of inquiry under which an investigation was being had before the Senate Judiciary Committee by making false and misleading statements.”

That confusingly worded line says statements, plural — not just the single quote in count one. Yet there’s no explanation of what those statements are. It is impossible to understand what federal prosecutors are claiming Comey did wrong, or why they’re claiming it.

You may think this is normal for a high-profile federal indictment. I assure you it is not. A typical indictment contains clear and specific details designed to show that there is good reason to believe the accused person committed the crimes in question.

If you look at the indictment of Jeffrey Epstein, for example, you get damningly detailed descriptions of how Epstein procured minors for sex. If you read the indictment of former Sen. Bob Menendez (D-NJ), you see pictures of the literal gold bars he took as bribes. And if you read one of the federal indictments of Trump, you will find accounts of the conversations in which Trump helped construct a conspiracy to unlawfully overturn the 2020 election.

But if you read the Comey indictment, you’ll find absolutely nothing of the kind. There is zero reason to believe that he committed any crimes other than that the government’s said so.

Now, it’s still possible that federal prosecutors have something. Comey acknowledged, in 2017 testimony, that he gave memos about his conversation with Trump to a friend, intending the friend (a law professor named Daniel Richman) to ultimately leak them. And federal prosecutors recently subpoenaed Richman as part of the perjury investigation. But would Comey have really lied about something that he himself already admitted?

To make matters more confusing, we don’t even know that the indictment is about Richman. My colleague Andrew Prokop suggests that the indictment is likely about a separate dispute between Comey and his former deputy Andrew McCabe about leaks to the Wall Street Journal. This would be a problem for the prosecution as an investigation by the Office of the Inspector General found “the overwhelming weight of that evidence supported Comey’s version of the conversation.” So why bring the case now?

This might all be a little bit clearer if federal prosecutors had put details into their indictment, but they chose not to. There is literally no way to evaluate their allegations, because the allegations have no substance.

Which brings me back to my original point — fears of a political prosecution.

Trump has openly called for political prosecutions and pressured the Justice Department to go after Comey specifically. The indictment was a golden opportunity to create the impression that this was legitimate, which is what smart authoritarians do when they arrest their enemies — and they completely botched it. The legal work is so far below par that it seems as if they’re actively trying to vindicate claims that this is a trumped-up political case.

MSNBC’s Ken Dilanian, a deeply sourced Justice Department beat reporter, said the mood in the department is grim.

“What I am hearing from DOJ sources: The Comey indictment is among the worst abuses in DOJ history,” Dilanian wrote. “It’s hard to overstate how…big a moment this is.”

This suggests that the common sense read of the indictment — that it’s an authoritarian overreach by an authoritarian president — is also the correct one.