This week, President Donald Trump and his Justice Department made its third attempt to go after former FBI Director James Comey, but a former FBI general counsel wants people to know that the recent move isn’t an indictment and it certainly isn’t going to move forward.
Sarah Longwell, publisher at The Bulwark, spoke to Andrew Weissmann, a frequent foe of Trump’s about the new case, mistakenly calling it an “indictment.” Weissmann quickly corrected her, saying only a grand jury can indict someone on felony charges.
The last time Comey was part of the narrative was “Seashell-Gate,” where he posted a photo of seashells spelling out “86-46,” meaning remove the 46th president from office.
“The really strong, important case where — because he posted the picture of the seashells and the government apparently thought that was a threat on the president, they waited a year — a year — to bring the case because the, you know, threats on the president are things that you want to wait on.”
“The sea shell threat was imminent,” Longwell joked.
The new case alleges that Comey illegally shared classified information or “crimes involving receipt, possession, transmission, etc., of National Defense Information.” Ironically, it was the same thing Trump was tried for after stealing the classified documents from the White House in 2021.
“He has not been indicted,” said Weissmann. “And the reason that’s important is this is beyond a rookie mistake. It is Looney Tunes. Um, so stick with me. This is, I’m going to do some law, but it is really simple law. The Constitution of the United States, the Fifth Amendment says that if you are going to be charged with a federal crime, a felony, it has to be the grand jury that does it. Meaning that a prosecutor can’t just say, ‘You’re charged with a federal crime.'”
He compared it to Cassidy Hutchinson, whom the DOJ said it would go after for “lying to Congress,” but when the Justice Department presented the evidence to the grand jury, they didn’t buy it. So, the DOJ can’t charge Hutchinson.
The same is true in the Comey case, where they also didn’t go to the grand jury to get an indictment. They just issued “information,” not “indictment.”
Ironically, he said, filing “information” gives the potential defendant an opportunity to say, “you don’t have to go to the grand jury; just indict me now.”
Weissmann said that folks might ask why anyone would ever do something like that. He described it as matching situations where someone may want to cooperate with a larger investigation and cut a deal.
“It exists in the law that you can bring something by an information, but it is only there — it only has any legal significance if the defendant has agreed to it. James Comey, we have seen in the filings, has said he did not agree to it. So, when the government says we are filing an information and it is before a federal judge, Trevor McFaden, in D.C., that is not anything. It is a nullity. It is an abortion. It is an absolute non-existent thing in the law. So, James Comey has not been charged. We know the government wants to charge him with that, but they haven’t actually gone to court and obtained that.”
Quietly, Weissmann said, Comey has been saying, “I’m not sure they think that the government knows they need to get an indictment.” The statute of limitations is up, unless the DOJ can use some maneuver to extend it a few days, but even then it has been over 10 years.
The 10-year time limit he’s speaking about in this case is about the statute of limitations. The DOJ could try to charge someone for a lower-level version of the crime after five years, and the more serious version of the charge has a 10-year statute of limitations. The DOJ sought to go after the most severe case at the 10-year mark because the 5-year option was during the previous administration.
The reason for it, Weissmann said, is twofold: One, he said that it sends a message to all federal law enforcement that anyone who did anything to Trump ever will be punished to the full extent that he can. That can mean charges that would never pass muster, but could cost lawyers fees and other resources.
The second is more complicated. Weissmann said that he thinks Trump is looking to the “kernel” of special counsel Robert Mueller’s investigation. A key piece of that was Gen. Michael Flynn, who was discovered, fired and charged by former President Barack Obama. So, Trump could see that as the start of the Mueller investigation before there was a Mueller. It’s a main reason that Trump believes all of the conspiracies against him began during the Obama administration.
“You can see that he’s thinking, oh, this is part of sort of the kernel of the problem I had. If I didn’t have somebody who was willing to stand up and tell the truth…” Weissmann said.