It looks like we’re going to have a trial to determine if James Comey or Andrew McCabe is a liar. Both are former directors of the Federal Bureau of Investigation, so this isn’t a great outcome for the FBI. There are a number of oddities about this case, but one of them is that the alleged underlying misconduct benefited rather than hurt Donald Trump. So, let’s talk about the underlying misconduct.

Comey is charged with lying to Congress and obstructing a congressional investigation, but this was done allegedly to deny responsibility for authorizing a leak of classified information to a Wall Street Journal reporter named Devlin Barrett. Barrett used this information, which he received from Andrew McCabe while McCabe was serving as Comey’s deputy, to write an October 30, 2016 article entitled, “FBI in Internal Feud Over Hillary Clinton Probe.”

The significance of the article was that it came just days before the 2016 election and it confirmed for the first time that the Justice Department had been investigating the Clinton Foundation. This was extremely unhelpful to Hillary Clinton.

It’s better remembered that Comey damaged Clinton’s electoral chances by announcing to members of Congress in this same critical timeframe that the FBI was renewing its investigation of her use of a private email server. This information was immediately leaked by the Republicans, as Comey must surely have anticipated. So, in context, the actions taken by the FBI in late-October 2016 were a boon to Trump and possibly catastrophic for Clinton.

There was an internal investigation about the leak to Barrett which was led by then-DOJ inspector general Michael Horowitz. Horowitz concluded that McCabe was responsible for the leak and that his claim that Comey had authorized it was unlikely to be true. McCabe’s motive “was to rebut a narrative that had been developing following a story in the WSJ on October 23, 2016, that questioned McCabe’s impartiality in overseeing FBI investigations involving former Secretary of State Hillary Clinton.”

Horowitz found that the leak was improper and violated DOJ and FBI policies, and that McCabe had repeatedly lied about his actions, including under oath.

When Comey appeared before the Senate Judiciary Committee in May 2017, Sen. Chuck Grassley of Iowa asked him if he had ever authorized leaks to the press related to investigations of either Trump or Clinton, and Comey denied that he had.  Then, in October 2020, Comey appeared again before the Senate Judiciary Committee and was confronted by Texas Republican Ted Cruz. Cruz noted that McCabe had accused Comey of authorizing the Barrett leak and that it was impossible that both he and McCabe were telling the truth about it.

Comey was reluctant to call McCabe a liar, but in sum and substance, that was his testimony. He denied that he had authorized the leak and insisted McCabe had denied authorizing it himself.

So, now Comey is being charged with lying to Congress. The indictment pertains only to his 2020 answers to Cruz and not his 2017 responses to Grassley. There was a third count that the grand jury rejected, which may have been related to Grassley.

Given the underlying facts, it’s unsurprising that no prosecutor thought it proper or promising to charge Comey with a crime. Insofar as it could be proven that someone had authorized the leak, it was McCabe who was responsible. The IG investigation backed Comey and disbelieved McCabe. The motive for the leak appeared to be neutral between favoring Trump or Clinton, since it was done in McCabe’s personal interests, but if there had been some political motive it clearly would have been to benefit Trump.

For these reasons, convincing a jury beyond a reasonable doubt that Comey had authorized the leak is going to be exceedingly difficult. Aside from the issue being primarily a matter of Comey’s word versus McCabe’s, the motive doesn’t line up. It was McCabe, not Comey, whose impartiality had been recently attacked in the pages of the Wall Street Journal. 

And the record shows that it was FBI director Comey who broke norms and procedures to announce the resumption of the Clinton email server probe, when that should have properly been done, if at all, by someone at the Department of Justice. Clearly, in the relevant time period, Comey’s actions were suspiciously helpful to Trump, not Clinton. So, there’s no pattern of behavior to support a conviction of Comey.

All told, I don’t think Comey is likely to be convicted, but that doesn’t mean it’s okay that he stands accused and is facing up to 10 years in federal prison.