Comey doubled down on media leak denial after Durham inquiry, and it just got him indicted

Former FBI Director James Comey was indicted Thursday by a federal grand jury in Virginia on charges he made false statements to Congress when he denied leaking to the media – putting himself in legal jeopardy after having doubled down on his 2017denials during Senate testimony in 2020.

Comey’s alleged leaking was already part of the FBI’s prior Tropic Vortex classified leaks inquiry and was reviewed by then-U.S. Attorney John Durham. However, he never faced criminal charges over his alleged leaks – until the grand jury charged him with lying to Congress and obstruction of a congressional proceeding.

The DOJ’s new indictment, approved by a federal grand jury, stems from allegations that Comey misled the Senate during his testimony in late September 2020, when he doubled down on his May 2017 denial that he had ever authorized a leak of information to the media about the Trump-Russia investigation or Clinton-related investigations.

Comey, fired as FBI director in 2017 by President Trump, oversaw the politicized investigation into Hillary Clinton's illicit use of a private email server to send classified information and the baseless Trump-Russia collusion inquiry.

“No one is above the law,” Attorney General Pamela Bondi said minutes after his indictment. “Today’s indictment reflects this Department of Justice’s commitment to holding those who abuse positions of power accountable for misleading the American people. We will follow the facts in this case.”

Minutes later, FBI Director Kash Patel argued on social media that “for far too long, previous corrupt leadership and their enablers weaponized federal law enforcement, damaging once proud institutions and severely eroding public trust” and that “nowhere was this politicization of law enforcement more blatant than during the Russiagate hoax, a disgraceful chapter in history we continue to investigate and expose.”

The first count of the indictment accuses Comey of making "false statements within the jurisdiction of the legislative branch of the United States Government." 

The indictment alleges that Comey "did willfully and knowingly make a materially false, fictitious, and fraudulent statement in a matter within the jurisdiction of the legislative branch of the Government of the United Stales, by falsely stating to a U.S. Senator during a Senate Judiciary Committee hearing that he, JAMES B. COMEY JR., had not 'authorized someone else at the FBI to be an anonymous source in news reports' regarding an FBI investigation concerning PERSON 1." The identity of "Person 1" was not specified.

The second count of the indictment alleges that Comey engaged in "obstruction of a Congressional proceeding" because he "did corruptly endeavor to influence, obstruct, and impede the due and proper exercise of the power of inquiry under which an investigation was being had before the Senate Judiciary Committee by making false and misleading statements before that committee."

The indictment comes two weeks after former Comey adviser and Columbia University law professor Daniel Richman was subpoenaed as part of a criminal probe.

The indictments were brought by interim U.S. Attorney for the Eastern District of Virginia Lindsey Halligan. The former personal Donald Trump lawyer and White House aide was sworn in Monday. She replaced Erik S. Siebert, who resigned last week, allegedly under pressure from the Trump administration to bring charges against Comey.

The indictment for false statements and for obstruction was likely able to be obtained in a jurisdiction outside the nation’s capital because, even though Comey’s testimony was made during a Senate hearing held on Capitol Hill, he appeared remotely, likely from his home across the Potomac River in Virginia.

The U.S. Attorney’s Office for the Eastern District of Virginia said in a statement that Comey, if convicted, faces up to five years in prison. "Actual sentences for federal crimes are typically less than the maximum penalties," the statement also reads.

Comey said on Instagram after the indictment was announced: "my heart is broken for the Department of Justice, but I have great confidence in the federal judicial system.” The fired FBI chief added: “And I’m innocent. So let’s have a trial. And keep the faith.”

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, had asked Comey in a May 2017 hearing whether he had “ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation.” 

Comey replied, “Never.”

Grassley then asked whether Comey had “ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation.” 

Comey again testified, “No.”

When asked whether any classified information “relating to President Trump or his associates” had ever been declassified and shared with journalists, Comey said, “Not to my knowledge.”

While that testimony by Comey likely falls outside the statute of limitations for a false statements charge, he directly doubled down on it in another Senate Judiciary Committee appearance on September 30, 2020.

During that hearing, Sen. Ted Cruz, R-Texas, brought up fired FBI Deputy Director Andrew McCabe when pressing Comey on whether he had ever authorized leaks to the media.

“Now, as you know, Mr. McCabe, who works for you, has publicly and repeatedly stated that he leaked information to the Wall Street Journal and that you were directly aware of it and that you directly authorized it,” Cruz said. “Now, what Mr. McCabe is saying and what you testified to this committee cannot both be true. One or the other is false. Who's telling the truth?”

Comey replied, “I can only speak to my testimony. I stand by the testimony you summarized that I gave in May of 2017.”

“So your testimony is you've never authorized anyone to leak? And Mr. McCabe, if he says contrary, is not telling the truth, is that correct?” Cruz asked.

Comey replied, “Again, I'm not going to characterize Andy's testimony, but mine is the same today.”

Then-DOJ Inspector General Michael Horowitz had released a report in 2018 detailing multiple instances in which McCabe “lacked candor” with Comey, FBI investigators, and inspector general investigators about his late October 2016 decision to leak sensitive information to the Wall Street Journal that revealed the existence of an FBI investigation into the Clinton Foundation.

After the release of that 2018 report, which concluded “the evidence is substantial” that McCabe misled investigators “knowingly and intentionally” and said he violated FBI offense codes as well as policy, then-Attorney General Jeff Sessions fired McCabe in March 2018 just before he was set to retire.

McCabe denied wrongdoing and sued the Justice Department in 2019, claiming his firing was brought on due to pressure from President Donald Trump, in his first term. The Trump-era DOJ decided in early 2020 not to prosecute McCabe over his alleged dishonesty.

Horowitz wrote in his 2018 report that McCabe told the watchdog that “he and Comey discussed the October 30 WSJ article in person on October 31, 2016, when McCabe returned to the office from a trip … McCabe said that he told Comey that he had ‘authorized AD/OPA [Assistant Director, Office of Public Affairs] and Special Counsel to disclose the account of the August 12th [2016] call’ and did not say anything to suggest in any way that it was unauthorized.”

The DOJ watchdog report said that “McCabe told us that Comey ‘did not react negatively, just kind of accepted it.’ McCabe also told us Comey thought it was a ‘good’ idea that they presented this information to rebut the inaccurate and one-sided narrative that the FBI was not doing its job and was subject to DOJ political pressure.”

The Horowitz report went on to say that “Comey told us that he recalled seeing this article but did not know how the disclosure about the PADAG [Principal Associate Deputy Attorney General] call in the October 30 article happened. … Comey told us he considered the disclosure about the PADAG call ‘problematic’ because it related to ‘sensitive FBI information’ and was unauthorized, unless either he or McCabe authorized it, and Comey knew that he did not authorize it.”

Just the News reported last month that FBI agents did force a stunning admission that Comey used a special conduit to a Pulitzer Prize-winning New York Times writer in his bid to polish his image and push for a special prosecutor to take down Trump.

Richman, who was made a special government employee by Comey, admitted to agents that he routinely communicated on behalf of Comey, his longtime friend, with Times reporter Michael Schmidt, whose work was among the newspaper's Pulitzer-winning stories on the Russiagate saga. The goal, Richman told the FBI, was "to correct stories critical” of Comey and the FBI and to “shape future press coverage.”

The Times article in question wrongly argued that in the case of the Trump-Russia investigation Comey “conducted the investigation by the book.” Richman insisted to federal agents that he did not believe he had confirmed or provided classified intelligence to reporters but said he could not be 100% certain, the memos state, noting he could only make his leak denial “with a discount.”

The “summary of investigative steps” by the FBI included interviews with bureau and intelligence community officials, document reviews, phone and email records searches, the review of a 2017 leak investigation conducted by Durham and the U.S. Postal Inspection Service, and more.

“Based upon discussions with DOJ, these investigative steps did not generate sufficient proof to charge any individual with willfully transmitting the Classified Information, conspiring to transmit the Classified Information, or aiding and abetting another person’s Transmission,” the FBI concluded in 2021.

The FBI claimed that “the investigation has not yielded sufficient evidence to criminally charge any person, including Comey or Richman, with making false statements or with the substantive offenses under investigation.”

Just the News also revealed last month that federal prosecutors gathered evidence from more of Comey's top lieutenants that he authorized the leak of classified information to reporters just before the 2016 presidential election but declined to bring criminal charges.

The revelations involving ex-FBI general counsel James Baker and ex-Comey chief of staff James Rybicki were memorialized in documents that Patel discovered earlier this year. 

The memos detail evidence and interviews gathered by U.S. Postal Inspection Service agents concerning classified information leaked to the Times in October 2016 , ahead of the November election in which Republican Donald Trump defeated Democrat Hillary Clinton.

"The USPIS [U.S. Postal Inspection Service] Investigation also revealed Baker disclosed USG [U.S. government] classified information to the NYT under the belief he was ultimately instructed and authorized to do so by then FBI Director James Comey," one summary memo reads. "For example, during interviews, Baker indicated FBI Chief of Staff James Rybicki instructed him (Baker) to disclose the information to the NYT, and Baker understood Rybicki was conveying this instruction and authorization from Comey."

Rybicki, as Comey’s chief of staff, and Baker, as the FBI’s top lawyer, each played key roles in the FBI’s investigations into Clinton’s mishandling of classified information and into baseless claims of Trump-Russia collusion.

An FBI memo said that by late-December 2017, then-U.S. Attorney Durham and USPIS “completed their investigation and provided a memorandum with their conclusions and recommendations to Attorney General Jeff Sessions.”

The FBI field office later issued a memo in late February 2020 indicating that the investigation had ended with the U.S. attorney’s office in the nation’s capital declining to prosecute. 

Durham and USPIS “completed their investigation” in mid-December 2018, and the “Durham Memo” sent to then-acting Attorney General Matthew Whitaker “recommended NO prosecution of Baker or anyone else,” the recently-declassified portion of the FBI record revealed.

The FBI memos stated that in late January 2020 the U.S. Attorney’s Office in D.C. “issued a prosecutorial declination decision for TROPIC VORTEX.”

Horowitz wrote another report, released in 2019, criticizing Comey’s decision to leak his so-called “Comey Memos” – including details about Trump’s alleged comments about Lt. Gen. Mike Flynn – to the media in 2017 in an effort by the then-fired FBI director to spur the appointment of a special counsel.

Horowitz wrote that his investigation “interviewed 17 witnesses, including former Director Comey and Daniel Richman, the individual who, at Comey's request, shared the contents of one of the Memos with a reporter [Schmidt] for the New York Times.” Comey told Horowitz that the day after being fired by Trump, he retained Richman as an attorney.

“We have previously faulted Comey for acting unilaterally and inconsistent with Department policy,” the DOJ watchdog wrote. “Comey’s unauthorized disclosure of sensitive law enforcement information about the Flynn investigation merits similar criticism.”

Comey admitted in 2017 that he had hoped leaking this information “might prompt the appointment of a special counsel.” Horowitz concluded Comey’s leaks were “an attempt to force the Department to take official investigative actions.” Comey’s leak efforts were successful, and Mueller was appointed special counsel a day after the Times began publishing the contents of Comey’s memos.

Horowitz sent a criminal referral to the DOJ over Comey’s memos at the time, but the DOJ declined to prosecute.

An article in the Times penned by Schmidt was titled “Comey Memo Says Trump Asked Him to End Flynn Investigation” and was published on May 16, 2017. Then-Deputy Attorney General Rod Rosenstein appointed Mueller as special counsel the next day.

Flynn was Trump’s first national security adviser. He twice pleaded guilty to charges of lying to the FBI about conversations he had with a Russian diplomat during the presidential transition in late 2016. In 2020, the Justice Department requested the dismissal of its criminal case against Flynn.

After two years, Mueller “did not establish” any criminal Trump-Russia collusion.