Federal prosecutors at the Department of Justice may be looking for more evidence against James Comey, as legal analysts warn the case accusing the former FBI director of lying to Congress is too fragile to guarantee a conviction.
Mike Davis, who previously served as chief counsel to Sen. Chuck Grassley (R-Iowa) and is a Trump ally, told The Post on Friday that he expects prosecutors to expand the charges. Comey was indicted Thursday on counts of making false statements to Congress and obstruction of justice.
“I imagine there will be a superseding indictment on this case, and I’m pushing very hard for the Crossfire Hurricane investigation to get moving,” Davis said.
The indictment was filed just before the five-year statute of limitations expired for Comey’s testimony before the Senate Judiciary Committee on September 30, 2020.
The charges, brought by acting U.S. Attorney for the Eastern District of Virginia Lindsey Halligan, center on testimony from Comey’s former deputy Andrew McCabe. McCabe told the Justice Department inspector general that Comey said it was “good” that he had passed information to The Wall Street Journal for an October 30, 2016 story about the Clinton Foundation probe.
“The case was strong enough for the grand jury to indict,” said Davis, who worked at DOJ during the George W. Bush years.
“Comey clearly lied twice. He lied in 2017 to Grassley. He lied again in 2020 to Ted Cruz, and this is just the beginning of Comey’s legal troubles.”
Still, Davis conceded the prosecution faces an uphill battle in Virginia, a Democratic stronghold, where Biden-appointed Judge Michael Nachmanoff is presiding.
Skeptics argue that while evidence may exist showing Comey misled lawmakers, the case has serious weaknesses. Among them is a memo written by former U.S. Attorney Erik Siebert opposing charges against Comey, which could be introduced to support claims of political or vindictive prosecution, especially when paired with Trump’s repeated criticisms of the ex-FBI chief.
McCabe also testified that Comey approved the leak only after the fact, rather than authorizing it beforehand. McCabe himself was fired in 2018 by then-Attorney General Jeff Sessions after an inspector general report concluded he “lacked candor” with both Comey and other senior officials.
“Andrew McCabe, if it goes to trial and he testifies for the government, he will be eviscerated,” said Gene Rossi, a longtime federal prosecutor in the Eastern District of Virginia.
“If they go to trial — if it gets that far and it’s not killed or dismissed because of vindictive and selective prosecution, facts for which are abundant — they have got a proof problem at trial,” Rossi added. Rossi worked alongside Comey in Virginia between 1996 and 2001.
Former prosecutor Neama Rahmani predicted a similar outcome: “I think they lose this case,” he said of the Trump DOJ’s effort, noting, “If the DOJ cared about this leak, they would have prosecuted it during the first Trump administration.”
Comey testified to Congress in 2017 that he “never” served as an anonymous source about investigations into President Trump or Hillary Clinton and that “no,” he had not allowed subordinates to act as anonymous sources for reporters on those matters.
At a September 2020 Judiciary Committee hearing, Comey reaffirmed his earlier testimony, telling Sen. Ted Cruz (R-Texas), “I stand by the [2017] testimony.” That reaffirmation extended the five-year statute of limitations, setting September 30, 2025, as the deadline for possible charges.
McCabe, however, told investigators in 2018 that he “did not recall discussing the disclosure with Comey in advance of authorizing it, although it was possible that he did.” Comey, on the other hand, told the inspector general that McCabe “definitely” had not informed him of the leak.
“The director and the deputy director of the FBI are the only two FBI officials who have the authority and the responsibility to authorize the release of information to the media,” McCabe later testified before the Senate Judiciary Committee in November 2020.
{Matzav.com