The Indictment of James Comey

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Speaker 10 From the New York Times, I'm Michael Bilbaro. This is the Daily.

Speaker 10 On Thursday night, a grand jury indicted the former director of the FBI, James Comey, in a case that Trump has personally demanded that federal prosecutors pursue.

Speaker 10 despite their own serious doubts about whether Comey committed a crime.

Speaker 10 Today, my colleague, Devlin Barrett, on what's in the indictment and what it means for Trump's ongoing campaign of retribution.

Speaker 10 It's Friday, September 26th.

Speaker 10 Devlin, it's late at night, 9.15 on Thursday night, and I'm grateful for you making time for us.

Speaker 11 Happy to be here.

Speaker 10 This, Devlin, is an indictment that we're going to be talking about that President Trump has always wanted to bring against James Comey, his longtime nemesis.

Speaker 10 But it's an indictment that almost every government prosecutor that has looked at it has actually said, we don't want to bring it because they didn't think there was enough evidence to ever get to a conviction.

Speaker 10 And yet, here we are.

Speaker 11 Yeah, this is a huge moment for the country. You have a former FBI director indicted, and it's huge for a bunch of reasons.
But I think most importantly,

Speaker 11 it is the culmination, it is the result of a very public

Speaker 11 and incessant campaign of retribution by President Trump to use the justice system that he resents, that he distrusts, that went after him, to instead use that system to pursue his enemies, to use DOJ as a tool against the people that he blames for his own legal problems.

Speaker 11 And that makes for a frankly scary and tumultuous and uncertain moment at the entire Justice Department, because I don't think anyone who works in that space thinks Trump is going to stop with the indictment of Jim Comey.

Speaker 10 Right.

Speaker 10 And I think just to start, we should put this indictment into that context you just laid out of Trump seeing the Department of Justice as really a tool for personal retribution, very specifically against Comey and just how committed Trump has been to the idea of prosecuting Comey at this point for pretty much a decade.

Speaker 11 So you really need to go back to 2017 when Trump is a new president. James Comey is a veteran FBI director at that point.

Speaker 11 And within a matter of months, those two people just distrust each other more and more and more because Comey is leading an investigation into people in Trump's orbit.

Speaker 10 This is the Russia investigation. Did the Trump campaign collude with Russia? Trump's now president.
He hates the existence of this investigation.

Speaker 11 Right. And Comey sort of famously described being pressed for a pledge of loyalty from President Trump and trying to politely refuse to do that.

Speaker 11 Having a president like Donald Trump and an FBI director like Jim Comey is a combustible combination. And in May of 2017,

Speaker 11 Trump fires Comey.

Speaker 10 Right. Quite memorably.

Speaker 11 Yeah, quite memorably, quite dramatically.

Speaker 11 And that itself sets off a series of events that leads to a special counsel being appointed to investigate Donald Trump over the entire Russia question.

Speaker 10 Which only deepens his disgust and his fury with Comey.

Speaker 11 Well, Well, exactly.

Speaker 12 Look, he's a showboat. He's a grandstander.
The FBI has been in turmoil. You know that.
I know that. Everybody knows that.

Speaker 10 And my sense is that

Speaker 10 even in 2017, pretty much right after he fires James Comey, Trump develops

Speaker 10 a desire

Speaker 10 to

Speaker 10 prosecute him. Right.

Speaker 11 Because what's happening in that time period is the special counsel investigation is ramping up. This is becoming a bigger problem for the president.

Speaker 12 No collusion, no obstruction. He's a leaker.

Speaker 11 And he increasingly blames those problems on Comey, who he calls a phony, who he calls a leaker.

Speaker 14 President Trump launched a Sunday morning tweet storm aimed at Comey. The president called Comey a slime ball.

Speaker 15 President Trump struck back on Twitter this morning saying James Comey is a proven leaker and liar.

Speaker 10 He added.

Speaker 11 Who he is deeply, deeply suspicious of and thinks is just out there trying to manipulate the government to cause Trump problems and to investigate Trump.

Speaker 16 He also called the former FBI director, quote, disgruntled and said Comey and others, quote, committed many crimes.

Speaker 10 And just to be fair to Trump in this moment, as I recall, Comey eventually makes clear that he did want a special counsel.

Speaker 10 He did want certain memos he wrote to become public, and he did believe that the president should be further investigated.

Speaker 11 Trevor Burrus, Jr.: Right. Comey admitted eventually to putting certain information out that he wanted out there because he thought it was important.

Speaker 11 And there are a number of criticisms that are made of Comey's conduct, mostly of his judgment.

Speaker 11 But time after time, what you see in that period is prosecutors looking at Comey's actions and deciding these aren't really crimes.

Speaker 11 And that frustrates Trump, and it becomes sort of a a very sore point with him that, you know, why can't he find a prosecutor? Why can't he find an attorney general?

Speaker 11 Why can't he find someone loyal enough to him to charge Jim Comey with a crime?

Speaker 10 And then, as I recall it, the first term comes to an end. There is no prosecution of Jim Comey as Trump wants.

Speaker 10 So once Trump gets elected to a second term, What is he doing with his deeply held vengeance for Jim Comey? And how do we get to this point?

Speaker 11 He's telling anyone who will listen, and most importantly, the people who work for him in the government, they indicted me. Now they need to be indicted.

Speaker 11 And in Trump's mind, at the top of that list is Jim Comey.

Speaker 11 And he starts pushing senior Justice Department officials who are in many instances his former criminal defense lawyers.

Speaker 11 He starts pushing them harder and harder and harder to make a criminal case against Comey.

Speaker 11 But just ordering it isn't enough to necessarily make it happen. The Justice Department is not simply a top-down structure that solely follows orders.

Speaker 11 There are career prosecutors who are tasked with looking at this.

Speaker 11 This case ends up being in the Eastern District of Virginia office, and the prosecutors there look at the evidence and say, you know, this is not a good case. This is not a chargeable crime.

Speaker 11 And it wasn't just career prosecutors. It was also the Republican pick to run the federal prosecutor's office in the Eastern District of Virginia.

Speaker 11 And he, too, told his superiors, this is not a good case. This is not a case that should be charged.
It's simply weak.

Speaker 11 And unlike the first term when Trump often essentially settled for being told no, even though he didn't like it, he doesn't settle for that this time.

Speaker 11 This time, he forces out this Republican lawyer, and he puts in instead a White House aide who is very loyal to the president, a lawyer who has zero prosecutorial experience, and she pushes forward with this case that her own staff has already said is a bad case and shouldn't be brought.

Speaker 11 But he doesn't stop there. He publicly calls on his attorney general, Pam Bondi, to push forward and get an indictment.
It's basically a public order to keep going.

Speaker 10 Right. And it seems like he's finally gotten all the elements in place.
He's got an attorney general who will pretty much do whatever he wants. He's fired the U.S.

Speaker 10 attorney standing in the way, and he's installed a replacement who seems as loyal as Bondi and ready to go for it.

Speaker 11 Exactly.

Speaker 10 Okay, so that, I think, pretty much brings us.

Speaker 10 to

Speaker 10 today when that new U.S. attorney replacing the old one who didn't think this case had enough evidence to ever get anywhere, brings

Speaker 10 an indictment to the grand jury. And the grand jury accepts it and indicts Jim Comey.
So let's talk about what's actually in that indictment.

Speaker 11 Right. The indictment is about Jim Comey's testimony to a Senate committee back in September 30th, 2020.
That date is important

Speaker 11 because the statute of limitations for false testimony to Congress is five years. The statute of limitations in this case is set to expire next Tuesday.

Speaker 11 So whatever Trump wanted and whatever Trump's loyal soldiers were going to do, they had to do it this week or at the latest by next Tuesday.

Speaker 10 So that explains the urgency. What in the indictment is Comey alleged to have done illegally that relates to that Senate testimony from 2020?

Speaker 11 So Comey is accused in this indictment of lying lying to the Senate based on an exchange he had in that hearing with Senator Ted Cruz, a Republican from Texas.

Speaker 18 Thank you, Mr. Chairman.
Returning to Mr. Comey.

Speaker 18 Mr. Comey.

Speaker 11 And in that hearing, Senator Cruz asks him.

Speaker 18 On May 3rd, 2017,

Speaker 18 in this committee, Chairman Grassley asked you point blank, quote, Have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton administration.

Speaker 18 You responded again under oath, no.

Speaker 18 Now, as you know, Mr. McCabe, who works for

Speaker 11 that you did not authorize anyone at the FBI to leak information to reporters.

Speaker 10 And just to explain quickly, Cruz is asking about both the Russia investigation and the FBI investigation into Hillary Clinton's use of a private email server.

Speaker 10 Trump and Republicans, of course, were furious that no charges were brought against Clinton for using that server.

Speaker 11 Right. And Cruz is basically re-raising this issue because, again, remember, a lot of the Trump complaint, a lot of the Republican complaint about Jim Comey is that he's a leaker and a liar.

Speaker 11 That's their argument.

Speaker 11 And so

Speaker 19 I can only speak to my testimony. I stand by what the testimony you summarized that I gave in May of 2017.

Speaker 18 So your testimony is you've never authorized anyone to leak.

Speaker 11 What Comey says is that's true. I stand by my prior testimony.

Speaker 19 But mine is the same today.

Speaker 10 All right.

Speaker 11 And that is the thing that the Trump administration, the Justice Department now says was a lie.

Speaker 10 A lie because they have evidence, presumably, that they presented to the grand jury that Comey did instruct an aide to leak to the media, presumably.

Speaker 11 Someone. One thing it's important to point out about this indictment is that while we know what the statement is that prosecutors say is a lie, we don't know how it's a lie.

Speaker 11 The indictment doesn't tell us how this is a lie. It's not clear exactly who Comey allegedly authorized to leak information.
It's not clear what information he supposedly authorized to leak.

Speaker 11 So the indictment is very vague on that point. Got it.
But it is clear that it says that by denying it, Comey lied.

Speaker 10 Trevor Burrus: So it sounds like we don't really know what the evidence is based on the indictment that came out tonight. But I do want to reflect on something.

Speaker 10 All of these Department of Justice lawyers and even their bosses in the first term said this case is weak. You shouldn't bring it.

Speaker 10 And yet we now have an indictment that was brought and a grand jury that looked at it, evaluated it, and said, yes, we should indict Jim Comey.

Speaker 10 So should that tell us that perhaps this case isn't as weak as all these prosecutors thought it was?

Speaker 11 It's possible, but think back. to the old expression, you can indict a ham sandwich, right?

Speaker 11 There is a cynical joke that it's extremely easy to indict someone, and that's because of the way the grand jury process works.

Speaker 10 Well, just explain that.

Speaker 11 Because prosecutors are the only people who present evidence. They present whatever evidence they want.
They don't need the grand jury to be unanimous.

Speaker 11 They just need, you know, 12 of the grand jurors to say yes to the proposed charges.

Speaker 10 Right. And 12 out of, I think, what, normally 18 or so?

Speaker 11 It's usually 15 to 18, you know, generally speaking. And then

Speaker 11 once you get the indictment, then the real test is obviously in trial. But the standard for an indictment is much lower than the standard for a conviction, certainly at trial.

Speaker 11 But so there's all these data points that the history of the case, the resistance from

Speaker 11 the career prosecutors indicating that this case is not strong. The indictment doesn't really tell us whether this case is strong.

Speaker 11 It's simply too short, and there's not enough detail in it to even make a judgment based on the paper. So there's a lot more to unpack about this.

Speaker 11 And there's, frankly, some of the parts of this we don't know yet.

Speaker 10 So the fact of an indictment from a grand jury does not necessarily ratify the underlying evidence or tell us how strong or weak it really is.

Speaker 11 Right. An indictment is just one step in the process.
It's not a resolution or a conclusion. So there's a lot more that has to play out, particularly in court.

Speaker 11 And there's a much bigger fight to be had along the way.

Speaker 10 And we will talk about that fight and where this case heads next right after the break.

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Speaker 10 So, Devlin, where does this indictment go from here? What are the next key steps in this legal process?

Speaker 11 Well, the next step is that Comey will be arraigned in court on this charge in early October, October 9th.

Speaker 11 And that will obviously be a dramatic moment, but we won't necessarily learn much or have much play out in court.

Speaker 11 I do think here, especially given what we know about the internal doubts about the strength of this case, I think you're going to see some legal challenges to this indictment before it ever gets to trial.

Speaker 10 Essentially, Comey's lawyers are going to attempt to have this tossed out.

Speaker 11 I have to think they will because

Speaker 11 there's already been so much in the public space about Trump demanding he be charged, about prosecutors saying this is not a strong case. It's hard for me to imagine a lawyer who would not do that.

Speaker 10 Well, let's talk about that, specifically what Trump has said.

Speaker 10 When we think about this case moving forward and potentially breaching a jury, not a grand jury, a regular old jury, I have to imagine, if it gets to that point, that Comey's lawyers will point to Trump's very public desire to punish Comey, including that true social post in which he says to the Attorney General, go after Comey, and to his firing of the U.S.

Speaker 10 Attorney who refused to bring the case and say that the motives behind this indictment are corrupt. And I wonder how that might play in a courtroom with a jury.

Speaker 11 So I'll be honest, that issue is more likely to play before the judge than the jury. That's the kind of sort of extraneous to the case itself question

Speaker 11 that is more likely for a judge to have to wrestle with before a jury does. Got it.

Speaker 11 And I'll just say, as a general observation, those types of arguments, political persecution, unfair, selective prosecution, those sorts of arguments rarely succeed in court,

Speaker 11 but you very rarely see the type of political statements, the type of political pressure brought to bear on this case.

Speaker 11 And so I don't think the normal course of court business is going to be a good way to think about how this particular case proceeds.

Speaker 10 I want to put out two scenarios. The first is one in which this case gets gets to a jury and a jury decides,

Speaker 10 despite all the reservations of the prosecutors so far, that James Comey is guilty of perjury. Just contemplate for a moment what that would mean and what it would represent.

Speaker 11 Well, I think, first of all, it would represent an amazing moment in this entire saga between Trump and Comey, between Trump and the Justice Department, and between Trump and the legal system writ large.

Speaker 11 This was a president who last year was facing four indictments,

Speaker 11 and this year

Speaker 11 has successfully gotten his Justice Department to indict the person he probably blames most for his legal problems, whether or not that's fair.

Speaker 11 And so I think a conviction in this case, which I think is far from certain, would be sort of a moment of triumph for Trump in this battle that has gone on for

Speaker 11 seven, eight years and counting.

Speaker 11 And I think a lot of people who have worked at the Justice Department, who have worked at the FBI, already view the indictment as a very sad and frustrating event.

Speaker 11 And I think any sort of conviction that drew out of this would be 10 times more so.

Speaker 10 Well, you're bringing me to the second scenario and the question I have about that, which is, let's presume for a moment that Comey is not convicted or that the case never even reaches a jury.

Speaker 10 As you're hinting at, for some people, including some people inside the Department of Justice, even if it's tossed out, this is a case where for them, a red line has been crossed.

Speaker 11 Right. I mean, I've had people say to me, a number of current and former DOJ lawyers say to me, the Justice Department, as I knew it, is dead.

Speaker 11 That is very much the fear

Speaker 11 of a lot of people who either used to work there or currently work there and are worried, greatly worried, about the way in which Trump seems to be getting everything he wants or most of what he wants from the Justice Department.

Speaker 11 And, you know, look, what he wants clearly in the Comey case and clearly in other cases is he wants retribution.

Speaker 10 Right.

Speaker 10 I mean, what he has articulated and what it sounds like to these lawyers, he has succeeded in doing is turning animus towards his enemies into really the modus operandi of the Department of Justice.

Speaker 10 And in doing so, turning an institution that for decades viewed its independence from the president as really a bedrock principle into an institution that openly now takes its orders directly from the president, where that independence is now vanished.

Speaker 11 Yeah, one of the things that I think is changing all the time at this Justice Department is

Speaker 11 what people work on and what people care most about.

Speaker 11 And every day I think the people giving the orders in the department and taking the orders in the department would agree that more and more of their work

Speaker 11 is

Speaker 11 to do what President Trump wants, period.

Speaker 11 And, you know, for some, for a lot of the people receiving the orders, that is a very disturbing and upsetting proposition.

Speaker 11 And for a lot of the people in the department who are giving the orders, they believe that's what they're there to do.

Speaker 10 From everything you've said, there are career prosecutors in the Department of Justice, including in the office prosecuting this case right now in Virginia, who never wanted this indictment to reach this point.

Speaker 10 So what is your expectation of what they will do now?

Speaker 11 Look, I think one of the most important details of what happened in this indictment is that no career prosecutor signed it. It is only signed by Trump's hand-picked

Speaker 11 new head of the office.

Speaker 10 Is that unusual?

Speaker 11 That's very unusual.

Speaker 10 So perhaps an act of protest.

Speaker 11 An act of protest and an unwillingness to put your name on something that you don't believe in. In addition to that, right after the indictment became public, one lawyer in that office resigned.

Speaker 11 Now, that lawyer in that office happens to be Mr. Comey's son-in-law.
Small World.

Speaker 11 And he basically said, look, I am leaving to uphold the Constitution and my duty to my country. So I would not be at all surprised if you see other resignations come as a result of this indictment.

Speaker 11 And I will tell you, in the entirety of the entirety of this year,

Speaker 11 there are a lot of DOJ lawyers who have had to make tough choices about resign or be fired because they're unwilling to do things that they are told to do that they think are unethical for lawyers or just plain wrong.

Speaker 10 You talk to these prosecutors all the time. I wonder what you've gleaned about how they're thinking about this.

Speaker 10 If they leave, they're likely to be replaced by lawyers more and more loyal to the president, more and more inclined to bring cases like the one against Comey.

Speaker 10 If they stay, then perhaps they have to bring those cases themselves.

Speaker 11 Right. And I have talked to countless people wrestling with that very question.
Is it more honorable to stay and try to make things better?

Speaker 11 Or is it more honorable to leave or be fired resisting things that they think are truly bad and unacceptable?

Speaker 11 I have seen people come down all over the map on that question for them personally and for whichever case in particular is sort of they feel is forcing them to make that kind of choice.

Speaker 11 I will say there are a couple of dynamics to this. One is, I think at this point, the people faced with those choices are

Speaker 11 pretty pessimistic about what's happening to the department, what will continue to happen to the department. And so I think you're going to see a lot more people leave just for all sorts of issues.

Speaker 11 And two, I think one of the things you're seeing all around the system is growing skepticism from judges and even some jurors and grand jurors

Speaker 11 about the merits of what Trump's Justice Department is doing.

Speaker 11 That has been growing as well through this process. There are significant instances already of jurors saying no, of judges criticizing prosecutorial decisions.

Speaker 11 There's every reason to think that that will continue and perhaps intensify.

Speaker 10 Devil, I just want to end by going back to the president's true social post, in which he pretty much ordered his attorney general to pursue more of these kinds of cases, to indict more of his enemies like Comey.

Speaker 10 And we know based on the reporting of people like you, who he has his eyes on: Adam Schiff for the role he played in Trump's impeachment.

Speaker 10 Letitia James, the Attorney General of New York, for the cases she's brought against Trump. Hillary Clinton for being a political foe who he has always loathed.
George Soros, a liberal donor.

Speaker 10 How far in the end

Speaker 10 do we think this is actually going to go?

Speaker 11 I think in the Comey case, you see an instance where he has, you know, in some ways, broken through and gotten exactly what he's always wanted out of this Justice Department, out of what he views as his Justice Department.

Speaker 11 But also, the same day Comey's indicted, Trump also signs a memorandum basically telling all these government agencies to investigate what he calls this vast conspiracy to sow violence on the streets of America.

Speaker 11 We reported on the same day that there's this order going out to try to build a case against George Soros' foundation on similar terms. He has a lot of people he wants investigated.

Speaker 11 He has a lot of people that he demands be thrown in jail.

Speaker 11 There's no reason to think that this will stop with Jim Comey.

Speaker 11 And I think the process that we've watched, the things we're following, give every reason reason to think the indictment of Jim Comey is the start of what this Justice Department is going to do.

Speaker 10 Well, David, thank you very much. Appreciate it.

Speaker 11 Thank you.

Speaker 10 On Thursday night, President Trump celebrated Comey's indictment in a social media post, calling it, quote, justice in America, and describing Comey as one of the worst human beings this country has ever been exposed to.

Speaker 21 Soon after, my family and I have known for years that there are costs to standing up to Donald Trump, but we couldn't imagine ourselves living any other way.

Speaker 10 Comey himself posted a response to the indictment.

Speaker 21 Somebody that I love dearly recently said that fear is the tool of a tyrant, and she's right.

Speaker 21 But I'm not afraid, and I hope you're not either.

Speaker 10 In which he lamented the state of the Justice Department under President Trump, but said that he was unafraid of his indictment.

Speaker 21 My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system, and I'm innocent. So let's have a trial and keep the faith.

Speaker 10 We'll be right back.

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Speaker 10 Here's what else you need to know today.

Speaker 22 He called the ICE employees people people showing up to collect a dirty paycheck.

Speaker 10 On Thursday, the U.S.

Speaker 10 Attorney for Texas said that notes left by the suspected shooter at an ICE facility in Dallas made clear that his target were ICE agents and personnel, not the three detainees that he ultimately shot.

Speaker 22 He wrote that he intended to maximize lethality against ICE personnel and to maximize property damage at the facility. It seems that he did not intend to kill the detainees or harm them.

Speaker 10 One of those detainees later died from his injuries.

Speaker 10 And President Trump has announced a new round of tariffs against imported pharmaceuticals, semi-trucks, kitchen cabinets, and furniture that will take effect on October 1st.

Speaker 10 The tariffs on pharmaceuticals have raised fears of higher prices on widely used drugs, but the White House said that best-selling medicines would be exempt.

Speaker 10 Today's episode was produced by Rob Zipko, Shannon Lin, and Mooj Zaidi.

Speaker 10 It was edited by Patricia Willins with help from Rachel Quester and Rob Zipko, contains original music by Dan Powell, and was engineered by Alyssa Moxley.

Speaker 10 The Daily's engineers are Chris Wood and Alyssa Moxley, with engineering support from Brad Fisher, Maddie Maciello, Nick Pittman, and Kyle Grandillo.

Speaker 10 Our theme song is by Ben Lansferk and Jim Brunberg of Wonderly.

Speaker 10 Our radio team is Jodi Becker, Rowan Yamisto, Diane Wong, and Catherine Anderson. Alexandra Lee Young is our deputy executive producer.
Michael Benoit is our deputy editor.

Speaker 10 Paige Cowitt is the editor of the daily. Ben Calhoun is our executive producer.
Special thanks to Paula Schuman, Larissa Anderson, Sam Dolnik, and to the founding editor of the show, Lisa Tobin.

Speaker 10 That's it for the daily. I'm Michael Bilbaro.

Speaker 10 See you on Monday.

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