Grand jury indicts James Comey

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MARY REICHARD, HOST: It’s Tuesday the 30th of September.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

First up: Former FBI Director James Comey—indicted on allegations he lied to Congress about the Trump–Russia investigation.

Here’s Texas Senator Ted Cruz asking Comey about allegations of leaks to the media:

CRUZ: Who's telling the truth?

COMEY: I can only speak to my testimony. I stand by what the testimony you summarized that I gave in May of 2017.

CRUZ: 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?

COMEY: Again, I'm not going to characterize Andy’s testimony, but mine is the same today.

Is that enough to put the former FBI director behind bars?

Joining us now is veteran prosecutor Bobby Higdon, he was U.S. Attorney for the Eastern District of North Carolina, and served 24 years as Assistant U.S. Attorney before that.

REICHARD: Bobby, good morning.

BOBBY HIGDON: Good morning.

REICHARD: This is the just latest chapter in a long saga, can you briefly remind us how we got here, and why this indictment is coming now?

HIGDON: Well, as you will recall, over the last number of years, Mr. Comey, as Director of the FBI, was involved in a number of very high profile investigations that the current president believes were handled wrongly. Those included the investigation into Hillary Clinton and her abuse of her position, as well as her meddling or being involved with the investigation into Russian, alleged Russian collusion with the Trump campaign. And so time has passed, there have been additional investigations around that, and now with the Trump administration in charge of the Justice Department, they've taken that opportunity to look back at Mr. Comey behavior and the statements he's made to Congress and have brought charges against him that arise out of questioning that was conducted by Senator Ted Cruz during that hearing back on September 30 of 2020, which means the statute of limitations on the matter runs today.

REICHARD: I think it's good to remind ourselves that an indictment is not proof of guilt, but do remind us what an indictment is. And what does this one say?

HIGDON: Well, an indictment is the means by which a grand jury notifies an individual or an entity that they've been charged with a crime, and it lays out, usually in the language that is based upon what's in the statute, the criminal statute, it lays out in that language exactly what the charge is. In this case, it informs Mr. Comey and all of us about the specific exchange that he had with Senator Cruz in terms of the counts that are moving forward, and it refers to what was actually said. Now, it doesn't provide the entire context, but it refers to the specific question and the specific response. And so that provides Mr. Comey with notice of the crime with which he's been charged. And then, of course, the government will provide him with the evidence as part of the discovery process, so that he'll know the details of those but this is really just a notice document, and it's the formal means that the Constitution requires us to use to initiate criminal charges and get the criminal proceeding underway.

REICHARD: How about the charge of obstructing a Congressional proceeding?

HIGDON: Well, that's the that's sort of the follow -on that their count two in the indictment is based upon the specific exchange between Mr. Comey and Senator Cruz and then count three with the count that you refer to is Based upon the idea that when you lie to a congressional committee or to to Congress that you have obstructed justice You've obstructed the the course and scope of their investigation by providing false testimony. So it's another way of charging the same type of act.

REICHARD: Bobby, how does the Justice department’s case against Comey compare to cases the previous DOJ launched against President Trump…over handling classified documents and response to the 2020 election results? Is this lawfare or something else?

HIGDON: Well, I think it depends on how you see the process that's underway. I mean, many would say this is law fair. Many would say this is a fair response to improper proceedings against President Trump in the past. So I think it's a matter of perspective, but it certainly is, and we've talked about this in prior interviews, it certainly is another one of those instances where a line is crossed. No FBI director has ever been indicted before. It is very difficult to prove perjury charges, because you have to get into the mind of the individual that made the statements. You do that through the circumstantial evidence and what other people can tell you about what they knew or should have known, but at the end of the day, you have to be able to prove that the statements were made falsely and corruptly, and that's what is going to be very difficult, as it is in any perjury case. So I think it's a matter of where you sit. But there is no question that this is a hard type of case to prove.

REICHARD: What happens next?

HIGDON: Well, what happens next is Mr. Comey is scheduled to make an initial appearance in US District Court in the Eastern District of Virginia, I think, sometime next week, and he will have the charges formally read to him. He'll enter a plea, I'm sure, of not guilty, and then the case will get underway. Things move fairly rapidly in the Eastern District of Virginia, which prides itself on referring to its docket as the rocket docket. But there will have to be an exchange of discovery information, which means the government has to show its evidence. Mr. Comey may have to show certain types of evidence if he's going to offer any, and of course, he doesn't have to. But there'll be that exchange of evidence and information. There'll be pre trial motions filed, I'm sure, motions to dismiss the indictment, motions to narrow the scope, motions to narrow the type of information that can be used as evidence in trial. So there'll be a motions practice that goes on, and then, unless the case is dismissed or Mr. Comey pleads guilty, there'll be a trial in the future. And as I said, given the history and the practice of this district, it may move fairly fast.

REICHARD: Bobby Higdon is a former Assistant U.S. now in private practice in North Carolina. Thanks so much.

HIGDON: Thank you, Mary.

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