Trump Gets His Indictment

This afternoon, a grand jury in the Eastern District of Virginia returned an indictment against former FBI Director James Comey. The two-count indictment is about a page and a half long. It charges Comey with:

• Making a false statement on September 30, 2020, by telling a U.S. Senator (presumably Ted Cruz) that he had not authorized someone at the FBI to be an anonymous source for news reports regarding an unidentified “PERSON 1.” The indictment alleges Comey had authorized “PERSON 3” to act as that source. The charge under 18 USC 1001 requires the government to establish that the defendant made a knowingly false statement and that it was material.

• Obstructing justice by making false and misleading statements—the plural here is interesting—when he testified before the Senate Judiciary Committee on the same date. 18 USC 1505, the so-called “omnibus clause” for protecting government processes, requires proof that (1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending. The defendant’s “corrupt state of mind” is a key point in these cases.

Only one prosecutor signed the indictment, which is unusual. Trump’s newly appointed U.S. Attorney and former criminal defense lawyer, Lindsey Halligan, signed. Typically, the signature of the U.S. Attorney is accompanied by those of the prosecutor or prosecutors who worked on the investigation and will be handling the guilty plea or trial that comes next.

It’s not entirely clear what statements by Comey the indictment refers to. It’s believed to be about Comey’s sparring match during that Senate hearing with Ted Cruz. But the indictment doesn’t make that entirely clear.

We have a system of “notice pleading” in our criminal justice system, which means a defendant is entitled to notice of the charges against them so they can prepare a defense. It’s likely Comey’s lawyers will ask for a bill of particulars, which will force the government to specify the precise statements he is charged with making and the factual basis for the charges. The defense will receive further information about the government’s evidence during the discovery process.

Comey made a statement tonight, which you can listen to here. He says he’s ready to go to trial and that he hopes Americans will do their duty and vote.

When Comey says “Let’s have a trial,” presumably, that doesn’t mean waiving potential defenses, like the selective and vindictive prosecution motions we’ve been discussing. His lawyers are too seasoned to do that lightly. In the federal system, motions that aren’t made in a timely fashion are deemed waived, and in a criminal case, you play all of your cards.

The Judge in the case, Michael Nachmanoff, scheduled arraignment for October 9. The schedule for the case moving forward, including items like discovery and pretrial motions as well as a trial date, will be set then. The Eastern District of Virginia is notorious for its “rocket docket,” with judges committed to moving cases quickly. This case will not linger, as the prosecutions of Donald Trump did.

Judge Nachmanoff was a federal magistrate judge for six years before President Biden appointed him to the district court. Prior to that, he served as a federal defender for 13 years and was the top federal defender in the Eastern District of Virginia for eight of those years.

Trump, of course, commented.

It’s a very disturbing moment in our country’s history. A president demanded an indictment of one of his enemies, someone he repeatedly ridiculed and vilified in public statements and social media posts, and he got it. He got it even though career prosecutors who had worked on the case didn’t believe the evidence met the standard for obtaining an indictment. In some ways, important ones, today’s news is about Jim Comey. But really, it’s about Donald Trump. It’s about a president who wants to abuse the power of government and make himself unstoppable. Don’t forget: We’re the guardrails. We cannot let that happen.

We’re in this together,

Joyce