The Indictment of James Comey

When you need a break, skip the scrolling.

Visit myprize.us.

The games are super exciting and you can actually win.

Myprize.us is the most fun, free-to-play social casino around.

Everyone deserves to win big.

All the slots and table games you love with incredible bonuses.

Sign up today for an incredible welcome package.

Myprize.us is a free-to-play social casino.

Users must be 18 or older to play.

Voidwear prohibited by law.

Visit myprize.us for more details.

When you need a break, make it memorable.

Visit myprize.us.

Real prizes, real winners, real easy.

easy.

From the New York Times, I'm Michael Bilbaro.

This is the Daily.

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.

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

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

It's Friday, September 26th.

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

Happy to be here.

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.

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.

And yet, here we are.

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,

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

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.

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.

Right.

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.

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.

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.

This is the Russia investigation.

Did the Trump campaign collude with Russia?

Trump's now president.

He hates the existence of this investigation.

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.

Having a president like Donald Trump and an FBI director like Jim Comey is a combustible combination.

And in May of 2017,

Trump fires Comey.

Right.

Quite memorably.

Yeah, quite memorably, quite dramatically.

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.

Which only deepens his disgust and his fury with Comey.

Well, Well, exactly.

Look, he's a showboat.

He's a grandstander.

The FBI has been in turmoil.

You know that.

I know that.

Everybody knows that.

And my sense is that

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

a desire

to

prosecute him.

Right.

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.

No collusion, no obstruction.

He's a leaker.

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

President Trump launched a Sunday morning tweet storm aimed at Comey.

The president called Comey a slime ball.

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

He added.

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.

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

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

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

Trevor Burrus, Jr.: Right.

Comey admitted eventually to putting certain information out that he wanted out there because he thought it was important.

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

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

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?

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

And then, as I recall it, the first term comes to an end.

There is no prosecution of Jim Comey as Trump wants.

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?

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.

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

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

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

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.

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

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.

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.

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.

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.

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.

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.

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.

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

Exactly.

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

to

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

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.

Right.

The indictment is about Jim Comey's testimony to a Senate committee back in September 30th, 2020.

That date is important

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.

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.

So that explains the urgency.

What in the indictment is Comey alleged to have done illegally that relates to that Senate testimony from 2020?

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.

Thank you, Mr.

Chairman.

Returning to Mr.

Comey.

Mr.

Comey.

And in that hearing, Senator Cruz asks him.

On May 3rd, 2017,

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.

You responded again under oath, no.

Now, as you know, Mr.

McCabe, who works for

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

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.

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

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.

That's their argument.

And so

I can only speak to my testimony.

I stand by what the testimony you summarized that I gave in May of 2017.

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

What Comey says is that's true.

I stand by my prior testimony.

But mine is the same today.

All right.

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

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.

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.

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.

So the indictment is very vague on that point.

Got it.

But it is clear that it says that by denying it, Comey lied.

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.

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.

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.

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

It's possible, but think back.

to the old expression, you can indict a ham sandwich, right?

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.

Well, just explain that.

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.

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

Right.

And 12 out of, I think, what, normally 18 or so?

It's usually 15 to 18, you know, generally speaking.

And then

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.

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

the career prosecutors indicating that this case is not strong.

The indictment doesn't really tell us whether this case is strong.

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.

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

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.

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.

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

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

This episode is brought to you by Huggies Little Movers.

It's fun having a baby that loves to move, but it can be challenging to find a diaper that can keep up with them.

Huggies Little Movers is designed to move with your baby with either the double grip strips or the new HugFit 360 degree waistband.

You can be confident relying on Huggies Little Movers for your active little ones.

Huggies Little Movers, made with double grip strips or the new HugFit 360 degree waistband.

So your little double can keep moving like you.

Huggies, we got you, baby.

Toyota's legendary truck event is on and the deals are legendary.

Get low APR plus 500 bonus cash on Tacoma or get low APR or 3,000 cash back on Tundra.

Toyota, let's go places.

Click the banner, visit Toyota.com for details.

When you need a break, skip the scrolling.

Visit myprize.us.

The games are super exciting and you can actually win.

Myprize.us is the most fun, free-to-play social casino around.

Everyone deserves to win big.

All the slots and table games you love with incredible bonuses.

Sign up today for an incredible welcome package.

Myprize.us is a free-to-play social casino.

Users must be 18 or older to play.

Voidwear prohibited by law.

Visit myprize.us for more details.

When you need a break, make it memorable.

Visit myprize.us.

Real prizes, real winners, real easy.

So, Devlin, where does this indictment go from here?

What are the next key steps in this legal process?

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

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

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.

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

I have to think they will because

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.

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

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.

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.

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

that is more likely for a judge to have to wrestle with before a jury does.

Got it.

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,

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

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.

I want to put out two scenarios.

The first is one in which this case gets gets to a jury and a jury decides,

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.

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.

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

and this year

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

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

seven, eight years and counting.

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.

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

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.

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.

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.

That is very much the fear

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.

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

Right.

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.

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.

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

what people work on and what people care most about.

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

is

to do what President Trump wants, period.

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

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.

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.

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

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

new head of the office.

Is that unusual?

That's very unusual.

So perhaps an act of protest.

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.

Now, that lawyer in that office happens to be Mr.

Comey's son-in-law.

Small World.

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.

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

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.

You talk to these prosecutors all the time.

I wonder what you've gleaned about how they're thinking about this.

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.

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

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?

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

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.

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

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.

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

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

That has been growing as well through this process.

There are significant instances already of jurors saying no, of judges criticizing prosecutorial decisions.

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

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.

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.

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.

How far in the end

do we think this is actually going to go?

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.

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.

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.

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

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

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.

Well, David, thank you very much.

Appreciate it.

Thank you.

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.

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.

Comey himself posted a response to the indictment.

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

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

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

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.

We'll be right back.

This episode is brought to you by Huggies Little Movers.

It's fun having a baby that loves to move, but it can be challenging to find a diaper that can keep up with them.

Huggies Little Movers is designed to move with your baby with either the double grip strips or the new HugFit 360-degree waistband.

You can be confident relying on Huggies Little Movers for your active little ones.

Huggies Little Movers, made with double grip strips or the new HugFit

degree waistband, so your little double can keep moving like you.

Huggies, we got you, baby.

Fall adventures are here.

Grab the keys to a new Toyota.

Get a low-cost lease on Prius, one of 17 fuel-efficient Toyota hybrids.

Plus, every new Toyota comes with Toyota Care.

Toyota, let's go places.

Click the banner, visit Toyota.com for details.

When you need a break, skip the scrolling.

Visit myfrize.us.

The games are super exciting and you can actually win.

Myprize.us is the most fun free-to-play social casino around.

Everyone deserves to win big.

All the slots and table games you love with incredible bonuses.

Sign up today for an incredible welcome package.

Myprize.us is a free-to-play social casino.

Users must be 18 or older to play.

Void work prohibited by law.

Visit myprize.us for more details.

When you need a break, make it memorable.

Visit myprize.us.

Real prizes, real winners, real easy.

Here's what else you need to know today.

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

On Thursday, the U.S.

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.

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.

One of those detainees later died from his injuries.

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.

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.

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

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.

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

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

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.

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.

That's it for the daily.

I'm Michael Bilbaro.

See you on Monday.

This podcast is supported by the American Petroleum Institute.

Energy demand is rising, and the infrastructure we build today will power generations to come.

We can deliver affordable, reliable, and innovative energy solutions for all Americans, but we need to overhaul our broken permitting process to make that happen.

It's time to modernize and build, because when America builds, America wins.

Read API's plan to secure America's future at permittingreformnow.org.