Trump's prosecutor has 'few choices' to indict James Comey — and they 'all suck': experts

MSNBC reported Wednesday that sources confirm the Justice Department intends to indict former FBI Director James Comey in the coming days—a gambit legal analysts warn is unlikely to succeed.

On Friday, U.S. Attorney Erik Siebert was removed from his post in the Eastern District of Virginia, despite being a Trump appointee. Former White House aide Lindsey Halligan was appointed as interim U.S. Attorney and is reportedly expected to prosecute the former FBI chief.

Writing for Lawfare after the news broke, legal analysts Benjamin Wittes and Anna Bower explained that while there are several possible paths for prosecution, none appear likely to stick.

"Realistically, you’ve only got a few choices" for charges, the legal experts explained, "and they all suck."

Most options discussed on Wednesday after the news was reported center on alleged false statements during Comey's September 30, 2020, congressional testimony. The statute of limitations for prosecution expires in six days.

"This idea is appealing because it might be possible to slap together a simple false statements case and get it in under the wire," they noted. The real challenge is convincing a grand jury.

In 2020, Comey was questioned about his May 2017 testimony denying any authorization of leaks regarding investigations into Hillary Clinton and/or Trump. Another possible route involves a previous, unprosecuted investigation by special counsel John Durham.

Wittes and Bower cited reporter Catherine Herridge, who wrote on X that “with the newly declassified records via Kash Patel into media leaks and the role of third parties, Director Comey’s 2017 testimony to the Senate Judiciary Committee about leaks appears problematic.” Herridge also wrote that Comey's chief of staff told the FBI general counsel to leak to the New York Times and it was "understood" that the directive came from Comey.

Lawfare notes that the DOJ investigation's closing memo is dated March 2020, meaning any non-prosecution decisions were made no later than under Attorney General Bill Barr. Wittes and Bower also speculate that some allegations may not be accurate.

"The documents reveal several facts about the underlying article: It appeared sometime in October 2016; it was sourced to two government officials; it contained classified information; and it obviously somehow involved the FBI," they wrote. "Exactly one news story meets these criteria... ‘Yahoo Said to Have Aided U.S. Email Surveillance by Adapting Spam Filter.’"

The statement from Comey, about to expire under the statute of limitations, references former deputy Andrew McCabe and an Oct. 30, 2016, Wall Street Journal report citing an anonymous source confirming the Clinton email investigation—information previously withheld by the FBI.

The DOJ inspector general already investigated this. The final 2018 report found McCabe improperly authorized aides to disclose sensitive information about the Clinton probe to the Wall Street Journal, and that he was not candid when questioned by investigators.

McCabe told the IG that Comey wasn't involved and expressed annoyance about the disclosure.

As Wittes and Bower sum up: "Whatever way you play Halligan’s hand, you lose. You lose by bringing a conspiracy case. You lose by bringing a false statements case involving the conduct of the investigation. You lose by bringing a false statements case involving supposed leaks. You lose by not bringing a case. You lose by going after Letitia James. And you lose by going after James Comey."

President Trump has also ordered the prosecution of New York Attorney General Letitia James and Sen. Adam Schiff (D-CA).

Read the full column here.