Prosecutors from the Department of Justice are reportedly seeking further evidence that former FBI director James Comey misled Congress, as experts warn that the case against him may be too flimsy to secure a successful conviction.
Mike Davis, who previously served as chief counsel for Sen. Chuck Grassley (R-Iowa) and is a supporter of Donald Trump, mentioned to The Post on Friday that he anticipates the federal prosecutors may file more charges against Comey, who was officially indicted on Thursday for allegedly lying to Congress and for obstructing justice.
“There is a strong possibility of a superseding indictment, and I am fervently advocating for the Crossfire Hurricane investigation to be propelled forward,” Davis commented.
Comey’s indictment came just days before the five-year statute of limitations expired related to his testimony before the Senate Judiciary Committee on September 30, 2020.
The indictment, secured by acting US Attorney for the Eastern District of Virginia, Lindsey Halligan, is largely based on statements from Comey’s former deputy, Andrew McCabe. McCabe claimed to the Justice Department’s inspector general that Comey remarked it was “good” that he had shared information with The Wall Street Journal regarding a pending investigation of the Clinton Foundation before the October 30, 2016, article was published.
“The grand jury found the evidence persuasive enough for an indictment,” Davis, a former Justice Department staffer during the George W. Bush presidency, asserted.
“Clearly, Comey lied on two occasions: first in 2017 to Grassley, and again in 2020 to Ted Cruz. This is merely the start of Comey’s legal battles,” he added.
However, Davis acknowledged that the prosecution may face challenges, given the liberal-leaning jurisdiction of Virginia and the case being overseen by a judge appointed by President Biden, Michael Nachmanoff.
Legal analysts have pointed out that while there may be evidence indicating Comey intentionally misled Congress, the case presents significant obstacles, including a memo created by former US Attorney Erik Siebert that argued against charging Comey, possibly being seen as evidence of vindictive prosecution, especially when coupled with Trump’s public critiques of Comey.
McCabe’s testimony indicated that Comey approved the disclosure of information related to the Clinton Foundation leak afterward, instead of pre-approving it.
McCabe was dismissed by then-Attorney General Jeff Sessions in 2018, following allegations in the inspector general’s report that he “lacked candor” during interactions with Comey and other officials.
“If McCabe testifies on behalf of the government during the trial, the prosecution will face major challenges,” stated Gene Rossi, who spent nearly two decades as an assistant US attorney in the Eastern District of Virginia.
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“Should it proceed to trial, assuming it survives any potential dismissal or accusations of vindictive prosecution, the prosecution will face significant evidentiary challenges,” Rossi noted, drawing from his own history working alongside Comey when he served as an EDVA prosecutor from 1996 to 2001.
Former federal prosecutor Neama Rahmani expressed skepticism about the Trump DOJ’s ability to win this case, stating, “I predict they will not prevail, given that if the DOJ was serious about pursuing this leak, they would have acted during Trump’s first term.”
During his 2017 congressional testimony, Comey stated he was “never” an anonymous source regarding investigations connected to President Trump and Hillary Clinton, asserting that he had not permitted his subordinates to serve as anonymous sources for reporters regarding those investigations.
At a Senate Judiciary hearing in September 2020, Comey reaffirmed to Sen. Ted Cruz (R-Texas) that he “stands by” his 2017 testimony, thus refreshing the five-year statute of limitations for false statements and establishing a deadline for potential charges to be filed by September 30, 2025.
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According to the IG’s report from April 2018, McCabe stated he “did not recall having a prior discussion with Comey before approving the disclosure, but acknowledged it was possible,” contradicting earlier assertions that Comey “definitely” was not informed about the leak.
“The director and deputy director of the FBI possess the sole authority and responsibility to permit the release of information to the press,” McCabe told the Senate Judiciary Committee during a hearing in November 2020.
