Legal analysts Friday are saying "this is a big one," referring to the indictment of former FBI Director James Comey as "structurally unsound" and liable to attack from the defense.
"Well, the defense strategy will involve making an early motion to dismiss the indictment for deficiencies. And this is a big one," Joyce Vance, former U.S. attorney and law professor at the University of Alabama, told MSNBC on Friday.
Vance pointed to the 2020 exchange with Sen. Ted Cruz (R-TX), which is the basis for the page and a half indictment, as "really a statute of limitations extender," she said. "The statute of limitations for this crime is five years. So Comey's original testimony in 2017 is off limits. And so they've used this as a device."
But Comey didn't say that in 2020 — he actually said it in 2017.
"The government will have to, at a minimum, amend its indictment to include the 2020 statement, perhaps exclusively, and then let a jury judge whether or not that constitutes a violation of the law. This is, I think, the first of many technical deficiencies we'll see with this indictment."
Ken Dilanian, MSNBC justice and intel correspondent, explained how it could open the door for the defense to push back on the indictment.
"It says that he falsely stated that, quote, 'He had not authorized someone else at the FBI to be an anonymous source in news reports regarding an FBI investigation concerning what the indictment calls person number one,'" Dilanian said. "Comey never actually said those words in this September 2020 hearing. That's at issue. All he said in answer to Senator Ted Cruz's questions was, 'I stand by my 2017 testimony in answer to a previous question from Senator Chuck Grassley.' The quote comes from Senator Cruz's question, but in the indictment, it appears to put words in Comey's mouth."
"It's not clear exactly how much of a problem that would be, but at least legal experts are telling us that is an avenue that that will allow the defense to attack this indictment on its face," Dilanian said.
Lindsey Halligan, the newly appointed U.S. attorney in the eastern district of Virginia, presented this indictment on her own.
"And she has no criminal experience," he added.
"And now we're learning that the indictment itself, the way it's written, might be structurally unsound and might be liable to attack by the defense because it appears, to quote Mr. Comey saying something that he did not say," Dilanian explained.
Comey is the first former FBI Director to be indicted by a federal grand jury, saying Thursday he is "not afraid."
An arraignment has been scheduled on Oct. 9.
