The Deeply Flawed Comey Indictment

National Review Online

Friday, September 26, 2025

 

The political animus that fueled the indictment against James Comey is bad, but it may pale in comparison to the incompetence of the Trump Justice Department’s execution of the lawfare ordered by the president.

 

Comey, the Obama-appointed FBI director fired by Trump in 2017, was charged on Thursday with two felony counts — perjury and obstruction of justice. It was supposed to be three counts, but a second perjury charge that the Justice Department posed was so weak it was rebuffed by the grand jury — which, remember, hears only the prosecutor’s version of events, with no cross-examination or defense witnesses.

 

Reportedly, the case was personally presented to the grand jury by Lindsey Halligan, the interim U.S. attorney Trump installed in the Eastern District of Virginia after he fired her predecessor, Erik Siebert, an experienced prosecutor. Siebert enraged the president by declining to charge Comey because, for what now appear to be good reasons, he believed there was no viable case. (He also declined to prosecute New York Attorney General Letitia James, another political foe the president is pressuring the DOJ to indict.) The 36-year-old Halligan is a former insurance lawyer; prior to the grand jury presentation, she had never been a prosecutor in a criminal case.

 

It shows. The perjury count appears deeply flawed. The charge is difficult to decipher because it is not merely terse (many indictments set forth only “bare bones” charging language, rather than narrations), but scant in its description of what Comey allegedly lied about.

 

It seems to relate to former FBI Deputy Director Andrew McCabe’s October 2016 leak to the Wall Street Journal of information about the bureau’s then-ongoing Clinton Foundation investigation. That’s discernible because the indictment quotes a senator as having asked if Comey “authorized someone else at the FBI to be an anonymous source in news reports” about the Clinton or Trump investigations. Searching the transcript, the senator quoted is Ted Cruz (R., Texas), and he was pressing Comey about McCabe’s leak to the WSJ.

 

Comey maintained that he had never authorized McCabe to leak. Cruz pointed out that McCabe had claimed to Justice Department investigators that Comey knew about the leak. McCabe did indeed make that claim. But Cruz further interjected in his questioning that McCabe had said Comey “directly authorized the leak.” In this, Cruz distorted McCabe’s version of events, which was that McCabe himself authorized the leak (he had his assistant, Lisa Page, speak with the WSJ) and then told Comey about it after the fact.

 

The conflict between McCabe’s and Comey’s version involved what McCabe told Comey and how Comey reacted. (Comey said McCabe didn’t own up to orchestrating the leak when they spoke about the WSJ article; McCabe said he informed Comey that he’d orchestrated the leak and Comey seemed untroubled.) For purposes of the indictment, however, that’s beside the point. The perjury count alleges that Comey falsely denied authorizing the leak. But McCabe, who admitted to authorizing the leak, never claimed that Comey authorized it. Comey cannot legitimately be convicted absent proof beyond a reasonable doubt that he truly believed he himself had authorized the leak, that he did authorize the leak, and that he therefore intentionally lied to the Senate when he denied it. Where’s the evidence of that?

 

There’s none that we can see. There is, however, a great deal of evidence corroborating Comey’s account. It was outlined in painstaking detail by the Justice Department’s then-inspector general, Michael Horowitz. Remember, Horowitz was no fan of Comey’s, having issued a number of withering reports faulting Comey for going public with evidence against the uncharged Hillary Clinton, mismanaging the Russiagate fiasco, and leaking reports of his conversations with Trump to the New York Times. But in connection with the Clinton Foundation leak to the WSJ, Horowitz found that Comey’s story was amply supported; the report is scathing with respect to McCabe, whom Horowitz referred to the Justice Department for a potential false-statements prosecution (which the first Trump Justice Department declined to bring, the case having been complicated by the president’s public diatribes against McCabe).

 

Assuming the perjury charge is about the Clinton Foundation leak, McCabe would appear to be a central witness. That would be problematic for the government if there were to be a trial. But prosecutors never get to trial unless they’ve clearly alleged wrongdoing.

 

In fact, failing to clearly allege a crime can result in a grand jury’s refusal to approve a charge. Halligan apparently tried to convince the grand jury that Comey had also lied at the same committee hearing by denying he’d been informed in 2016 that Hillary Clinton was behind the smear that Trump was colluding with the Kremlin. Yet, as the transcript elucidates, what Comey said was that he could not recall the FBI’s getting a criminal referral about that matter from the CIA. Put aside that there was no indication of falsity in Comey’s claim to not remember such a thing. In reality, there was no “criminal referral” in the sense of a recommendation that a person, in this case, Clinton, be investigated and potentially prosecuted.

 

Little wonder the grand jury demurred.

 

The second count in the indictment, obstruction, is premised on the allegation that Comey lied to the committee — i.e., the perjury charged in Count One. If the perjury charge falls, presumably the obstruction charge falls with it.

 

This sorry place is where lawfare takes the nation. Trump has valid complaints that his political enemies — Comey included — abused the justice system to try to convict him, bankrupt him, and render him unelectable. But turnabout is not fair play. Turnabout is a betrayal of the president’s responsibility to execute the laws faithfully. Turnabout is the president transforming James Comey into a martyr.