Federal prosecutors preparing to seek an indictment against former FBI Director James Comey for allegedly lying to Congress have just days left before the statute of limitations expires — one of several hurdles the Justice Department faces in pursuing its case against Comey.
The case against Comey, at least for now, centers on the remarks he made during his testimony before the Senate Intelligence Committee in a Sept. 30, 2020, hearing focused on the origins of the so-called ‘Crossfire Hurricane’ probe.
This could be tricky for two reasons. First, prosecutors have little time to make their case for perjury, which appears to be the basis of the probe.
That charge carries a five-year statute of limitations — giving prosecutors until Tuesday to impanel a federal grand jury, present their case and secure an indictment from at least 12 jurors before the deadline expires.
The second is there could be internal resistance from career federal prosecutors, who may refuse to present the case.
ABC News reported Wednesday that a group of prosecutors gave acting U.S. Attorney Lindsey Halligan — a former defense lawyer for President Donald Trump who was installed last week as acting head of the Eastern District of Virginia — a ‘detailed memo’ recommending she decline to bring perjury and obstruction charges against Comey.
They noted that a months-long investigation into Comey’s remarks, launched earlier this year, failed to establish probable cause for a crime.
They also reportedly reminded Halligan that DOJ guidelines generally bar prosecutors from filing charges unless they can show the individual is ‘more likely than not to be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal.’
Halligan, however, is free to override their concerns — despite any internal pushback the decision might cause.
Beyond that, prosecutors must also establish probable cause for perjury charges.
Perjury is a ‘very difficult crime for DOJ to prove,’ John Fishwick, the former U.S. attorney for the Western District of Virginia, told Fox News Digital.
That’s largely because prosecutors must not only prove the statement was false, but also that the defendant knew it was false at the time, Fishwick said. ‘Because of the difficulty of proof, it is not often pursued.’
The probe into Comey, for now, focuses on his testimony before the Senate Judiciary Committee during a Sept. 30, 2020, hearing on the FBI’s handling of the so-called ‘Crossfire Hurricane’ probe, which examined Trump-Russia allegations.
That investigation found no coordination and has itself been reviewed twice by the Justice Department.
During the 2020 hearing, Comey was asked by Sen. Lindsey Graham, R-S.C., if he could recall a September 2016 referral to the FBI about Hillary Clinton’s ‘approval of a plan’ involving ‘[Trump] and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private email server.’
Comey’s response — ‘that doesn’t ring any bells with me’ — was pilloried by Republicans, including Graham, who called the answer ‘stunning.’
Comey later said it was because the FBI, at the time, had already been looking into the matter for months (an assertion later backed by Special Counsel John Durham, who was tapped by then-U.S. Attorney General Bill Barr to investigate the origins of the Crossfire Hurricane probe).
News of the probe comes days after Erik Siebert was forced to resign from his role as the U.S. attorney for the Eastern District of Virginia, prompting Trump to install Halligan in his place.
Trump also took to Truth Social to urge Attorney General Pam Bondi to investigate Comey. ‘JUSTICE MUST BE SERVED,’ he said.
The looming indictment, which could come as early as Thursday, is the latest chapter in the years-long dispute between Trump and Comey, whom Trump fired in 2017, about five years into his 10-year term.
Comey, for his part, accused Trump shortly after leaving the FBI of demanding a ‘loyalty pledge’ from him, which he said he refused.
He has remained an outspoken Trump critic and used a portion of his memoir, ‘A Higher Loyalty,’ to take aim at the former president.
Trump has continued to assail Comey and scrutinize his tenure at the FBI.
Fox News reported earlier this year that the FBI launched criminal investigations into Comey and former CIA Director John Brennan for allegedly making false statements to Congress.