Washington — Former FBI Director James Comey is urging a federal court to dismiss the two federal charges brought against him over allegedly false testimony he gave to Congress in September 2020. He’s arguing that the questions he answered, which were asked by GOP Sen. Ted Cruz, were “confusing” and “fundamentally ambiguous.”
In a new filing with the court in Alexandria, Virginia, Comey’s lawyers argued that his testimony in response to Cruz’s questions was “literally true” and cannot support a conviction. The former FBI director’s legal team suggested that the government is attempting to try Comey on “cherry-picked statements” given during a four-hour long Senate hearing without specifying which parts of his testimony it believes were false or misleading.
They argued that while the government has the authority to prosecute witnesses who mislead federal investigators by giving false answers to clear questions, “it does not authorize the government to create confusion by posing an imprecise question and then seek to exploit that confusion by placing an after-the-fact nefarious interpretation on the ensuing benign answer.”
Comey’s lawyers also asserted that “basic due process principles in criminal law require that the questioner frame his questions with clarity so that a witness does not have to guess.”
A federal grand jury in Alexandria indicted Comey late last month on charges he lied to Congress and obstructed a congressional investigation. The alleged offenses stem from testimony Comey gave to the Senate Judiciary Committee in September 2020. He has pleaded not guilty to both counts.
Comey has already filed one tranche of motions with the court that argue the indictment should be tossed out on the grounds that it is based on a vindictive and selective prosecution. He is also challenging the validity of interim U.S. Attorney Lindsey Halligan‘s appointment to that role.
Comey’s lawyer, Patrick Fitzgerald, said in one of those filings that he would seek to dismiss at least the first count of the indictment — the allegation that Comey lied to Congress — because of Cruz’s questioning.
In addition to his latest bid to have the charges dismissed, Comey’s lawyers are asking for more details about the conduct underlying the two counts. They are claiming the indictment is “sparse” and has a “total absence of factual allegations.”
The indictment against Comey references an exchange the former FBI director had with an unnamed senator, believed to be Cruz, during the Judiciary Committee hearing more than five years ago. During the questioning, Cruz asked Comey about testimony he gave in May 2017, in which the former FBI chief was questioned about whether he had ever been an anonymous source or authorized anyone to be an anonymous source about matters relating to investigations into President Trump and former Secretary of State Hillary Clinton, who was the Democratic presidential nominee in 2016.
Cruz then referenced comments from Andrew McCabe, who was Comey’s deputy at the FBI, and claimed McCabe publicly said that Comey authorized him to leak information to the press.
“Now, what Mr. McCabe is saying and what you testified to this committee cannot both be true; one or the other is false. Who’s telling the truth?” Cruz asked Comey.
Comey said in response, “I can only speak to my testimony. I stand by what, the testimony you summarized that I gave in May of 2017.”
Cruz reiterated that Comey was testifying that he “never authorized to leak. And Mr. McCabe when if he says contrary is not telling the truth, is that correct?”
“Again, I’m not going to characterize Andy’s testimony, but mine is the same today,” Comey replied.
But prosecutors have claimed that Comey’s testimony was false because he authorized Daniel Richman, a longtime friend of his, to serve as an anonymous source in news reports about the FBI investigation involving Clinton.
The government confirmed to Comey’s lawyers that an unidentified individual referred to as “Person 3” in the indictment is Richman. A Columbia University law professor, Richman is a former federal prosecutor who also served as a “special government employee” at the FBI when Comey was director.
Richman has not been charged with any wrongdoing. His name also did not come up in the exchange that appears to have led to the charges against Comey.
In their bid to have the indictment dismissed, Comey’s lawyers said that any false-statements charge that rests on an interpretation of a “fundamentally ambiguous question” must be dismissed.
“Fundamental to any false statement charge are both clear questions and false answers,” they wrote. “Neither exists here.”
Comey’s lawyers argued that a “reasonable person” would’ve interpreted Cruz to be asking only about whether the former FBI chief had authorized McCabe to be an anonymous source, rather than broadly inquiring about Comey’s interactions with anyone at the FBI.
“The indictment contains no allegations that Mr. Comey’s answers were false: it never alleges that Mr. Comey made a false statement regarding Mr. McCabe,” they wrote. “On the contrary, the indictment omits Senator Cruz’s statements about Mr. McCabe, obscuring the context necessary to understand both the questions themselves and Mr. Comey’s responses.”
Comey’s legal team reiterated that he maintains that his 2017 testimony was truthful, but was also argued that his “statement that he stood by his prior testimony was truthful regardless of whether that prior testimony was itself truthful.”
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