Former FBI Director James Comey facing indictment threat

UPDATE (Sept. 24, 8:30 p.m.): On Wednesday evening, MSNBC learned that the Justice Department’s plan to indict James Comey encountered a last-minute roadblock earlier this week, when line prosecutors presented President Trump’s newly installed U.S. attorney in the Eastern District of Virginia with a memo suggesting their case against the former FBI director is too weak to pursue. Two sources familiar with the case said the memo explained why prosecutors lack sufficient evidence to convince a grand jury to indict Comey, but U.S. Attorney Lindsey Halligan can overrule their recommendation. This development was first reported by ABC News.

Federal prosecutors are expected to seek an indictment of former FBI Director James Comey in the coming days, after the top prosecutor in the Eastern District of Virginia — who opposed bringing charges — recently resigned under pressure from President Donald Trump, three sources familiar with the matter told MSNBC.

Prosecutors are rushing against the clock, before the statute of limitations involving one charge believed to be central to the case expires within the week. Comey famously refused to pledge his loyalty to Trump during his first administration.

The full extent of the charges being prepared is unclear, but the sources believe at least one element of the indictment — if it goes forward — will accuse him of lying to Congress in his testimony on Sept. 30, 2020, about whether he authorized a leak of information. The five-year statute of limitations on that charge would lapse Tuesday.

Comey’s lawyer, Patrick Fitzgerald, did not respond to a request for comment. A spokesman for the U.S. attorney’s office declined to comment.

The same U.S. attorney’s office is also investigating mortgage fraud allegations against New York Attorney General Letitia James. Two people familiar with the matter told MSNBC they believe James will be charged in that case, but they were not certain of the timing.

The sources described a fluid situation that could change for any number of reasons.

The Trump-appointed U.S. attorney in the Eastern District of Virginia, Erik Siebert, was forced out last week after it became clear he opposed bringing the case against James, according to multiple people familiar with the matter who were granted anonymity to speak freely about the sensitive matter.

Siebert was also not in favor of charging Comey, two people familiar with the matter said.

The new U.S. attorney, sworn in this week, is Lindsey Halligan, a former Trump defense lawyer and White House lawyer who has never been a prosecutor.

Among the elements being examined in the Comey case, the sources say, is an exchange he had with Sen. Ted Cruz, R-Texas, during a Senate Judiciary Committee hearing about the FBI’s investigation into whether the Trump campaign coordinated with Russia on 2016 election interference.

Cruz reprised a question Comey had been asked by Sen. Chuck Grassley, R-Iowa: “Have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton administration?”

Cruz said Andrew McCabe, who was the deputy director under Comey, had leaked information to The Wall Street Journal about the FBI’s investigation into the Clinton Foundation at Comey’s direction.

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

People familiar with the matter said investigators have asked witnesses whether Comey lied when he said he did not authorize leaks to the media, such as when McCabe told the Journal about Clinton Foundation investigations.

An independent investigation by the Justice Department inspector general concluded that Comey did not authorize the release of the information and that FBI rules allowed McCabe, as deputy director, to speak to the news media without authorization.

Trump fired Comey as FBI director in 2017 after Comey declined to pledge his loyalty, according to Comey’s sworn account.

Trump has called for Comey’s prosecution for years. Most recently, on Saturday on Truth Social, he lobbed a complaint directly at his attorney general, Pam Bondi, saying: “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.”

Trump added: “Lindsey Halligan is a really good lawyer, and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”