A Note About the Comey Case

In the wake of the Comey indictment, The Washington Post is reporting tonight that “Lawyers inside the high-profile U.S. attorney’s office [for the Eastern District of Virginia] prosecuting former FBI director James B. Comey are unnerved by what they see as an unprecedented push by President Donald Trump to inject politics into their staffing and charging decisions … a strategy they say could jeopardize national security investigations.” Two longtime prosecutors in the office were fired within days after Erik Siebert, the Trump nominee to be U.S. attorney who declined to indict Comey because the evidence wasn’t there, was replaced by Trump loyalist Lindsey Halligan. Halligan, a former insurance lawyer, has no prosecutorial experience.

The two prosecutors who were fired are:

• Maya D. Song, the former U.S. attorney’s first assistant, the second in command for the U.S. attorney. She was first demoted and then fired.

• Michael P. Ben’Ary, the chief of the office’s national security unit.

Both, it turns out, seem to have been targeted because of their association with Lisa Monaco, the deputy attorney general during the Biden administration, who served as the head of DOJ’s National Security Division during part of the Obama administration. That’s how petty this is. And it’s also dangerous. The Eastern District of Virginia plays an outsized role when it comes to terrorism investigations and prosecutions. One out of every five terrorism prosecutions have been filed in Eastern Virginia since DOJ started tracking these crimes in fiscal year 1995. Firing people with expertise and institutional knowledge in this area makes no sense. It’s pure appeasement for Trump and his allies on social media who attack people they view as political enemies and demand that they be canceled.

In the days following the indictment, there were additional revelations about the charges against Comey. That’s unusual. Normally, you read an indictment and you know up front what the defendant is being charged with. In fact, the Federal Rules of Criminal Procedure require the indictment to be a plain statement of the crime or crimes, and due process prohibits trial by surprise.

For the first 24 hours after the indictment became public, there was a widespread assumption that the false statement the government accused former FBI Director of making involved Andy McCabe, his number two at the Bureau, and whether he’d authorized him to be an anonymous source. Then came reporting that McCabe was never interviewed by prosecutors during the investigation and didn’t testify before the grand jury. Subsequently, there was reporting that the indictment involves a different individual named Daniel Richman, a friend of Comey’s who is a professor at Columbia Law School.

When I first wrote to you about the indictment, we noted that Comey’s lawyers would likely ask for a bill of particulars, a request that the judge force the government to specify the details underlying an indictment that is vague or deficient. This one certainly seems to be.

I wrote about the problems with the indictment for the Brennan Center in a piece out today, which I hope you’ll take a look at after you finish up here! I wrote, “Halligan may have obtained the indictment the president wanted, but it reflects the flawed process that produced it. Grand jurors rejected one count in the proposed indictment, reportedly involving an additional false statement, which happens very rarely. It’s not a good sign for the strength of the government’s evidence. It’s one thing to get a grand jury to indict. Getting a conviction is an entirely different matter.” A lot is going on in this case, and the utter irregularity and disregard for the rule of law the president is directing the Justice Department to act with, combined with a complicit attorney general, is something we cannot afford to lose sight of.

It’s possible, I suppose, that the government has evidence here that we are unaware of. It’s also possible that it was a mistake for an insurance lawyer who has never been a prosecutor or indicted a case to handle this one. We’ll continue to follow this closely. Comey will be arraigned in a week, and that’s when the case will really get underway.

It’s worth noting that even the magistrate judge who accepted the return of the indictment from the grand jury found the proceedings to be confusing.

Some commentators have suggested that permitting a judge to dismiss the case without holding a trial would fuel conspiracy theories about Comey being protected by the “deep state.” Even Comey seemed to express interest in going straight to trial. But it would be a mistake for a defendant in a criminal case to waive potentially powerful defenses like selective and vindictive prosecution. If successful, those motions could result in the prosecution being dismissed. Comey’s rights as a criminal defendant, including his ability to file appropriate pretrial motions, should not be sacrificed to hopes that a jury verdict will convince the inconvincible.

It would be naïve to expect Trump’s base to accept any outcome that doesn’t conform to their biases, including a decision by a jury to acquit. Comey’s lawyers should assert all of his defenses, including legal ones, in advance of trial. If the indictment survives preliminary motions and proceeds to trial, at the close of the government’s evidence, the defense will make a Rule 29 motion to acquit, arguing the evidence is insufficient to prove the charges and no reasonable jury could convict. That motion could well succeed if the evidence is as thin as the grand jury results suggest. If this case is decided by a judge before it gets to a jury, that will be only greater evidence that this was a flawed revenge prosecution through and through.

Jim Comey stands indicted. But the administration that has waxed loudly about horrible criminals has no issue with breaking the law itself. Following the shutdown, many federal government websites carry the same sort of “warning” that the Justice Department’s does.

It’s a partisan message, blaming Democrats for the government shutdown (even though Republicans control the White House, the Senate, and the House). And it’s being paid for with taxpayer dollars on government websites. That’s a clear violation of the Hatch Act, which restricts civilian executive branch employees from participating in partisan political activity. And as if irony isn’t already dead, it’s also on the DOJ website page advising employees they are subject to the Hatch Act.

Imagine if a Democratic president had done this. The Hatch Act may seem like a small thing, but it isn’t. It’s how Congress has chosen to prevent the party that is in power from abusing the resources entrusted to it and government employees and using them for political advantage. Employees are prohibited from engaging in political activity while on duty. They can’t wear clothing with political slogans on it. But now, all of government is clothed in this rank and deceitful political exercise.

So when this administration talks about Democrats as though they’re at fault in all of this, the ones who are trying to divide the country with hate, remember this Hatch Act violation, which will likely go unaddressed because Trump doesn’t care about the rule of law or about what’s right. It may seem like a small thing, but it used to be a big one. Until the first Trump administration and during the Biden administration, the Hatch Act was taken seriously. But with Trump, L’état c’est moi. This is a lawless administration that wants only one thing: more power.

We’re in this together,

Joyce