Dear listeners,
James Comey has been indicted, charged with making a false statement and obstruction of justice. A third proposed count was no-billed. Now, the government will try to prove he lied to Congress when he said he never “authorized someone else at the FBI to be an anonymous source in news reports” about the investigation of Hillary Clinton’s emails, even though he had, in fact, authorized “Person 3” to do this.
But — who will prosecutors say Comey did authorize? The usual thinking is it’s former deputy FBI director Andrew McCabe. But while McCabe and Comey have offered diverging accounts of their fall 2016 conversations about a leak to the Wall Street Journal, McCabe has never alleged that Comey authorized a leak — he only said he told Comey after the fact that he (McCabe) had authorized the leak. So… will McCabe say something different at trial? Is “Person 3” someone else entirely? It kind of seems like it would have to be, since indicting on the known facts about McCabe is so preposterous… but then, the indictment may simply be preposterous.
As Ken and I discuss, unlike in a civil case, Comey doesn’t have recourse to a motion to dismiss on the grounds that the government has failed to even allege a crime. (He’d have to wait until trial, after the government presents its case, to make a Rule 29 motion for dismissal.) But he may have an unusually strong claim for vindictive prosecution, which could get him a dismissal before trial.
That’s our conversation for free listeners. If you’re a paid subscriber, you get about half an hour of additional discussion. We talk about:
The Trump administration’s motion for the Supreme Court to issue a stay letting them kick Lisa Cook off the Federal Reserve Board for now, and the ways the court may try to avoid having to weigh in on the exact special, unique historical nature that makes the Federal Reserve special, unique, and not subject to the decision it’s surely about to issue overturning Humphrey’s Executor;
The guilty verdict against Ryan Routh and a judge’s admonishment of prosecutors in the case against Luigi Mangione;
What legal exposure Tom Homan could have faced if he really accepted $50,000 cash in a Cava bag; and
Updates on Trump’s try-hard defamation litigation against the Wall Street Journal and the New York Times.
Smash this button to get all of that:
We hope you enjoy the episode,
Josh
