JAMES COMEY

I am 69 years old.

I graduated from law school in January 1982, and after completing a federal judicial clerkship, passed the California bar exam and practiced there from 1983 to 1986. In 1986, I left California to become an Assistant US Attorney in New Hampshire, and in December 1987, I left that job and returned to New York, where I have practiced law (and until very recently lived) ever since.

In March I moved to Southbury, Connecticut.

And because I wanted to practice law there, and not only  in New York, I applied to be admitted to the Connecticut bar. 

Like many (but not all) states, Connecticut allows lawyers licensed in other states to apply for admission in theirs without taking the bar exam. Unlike many other states, however, Connecticut requires those applicants to have taken and passed the Multistate Professional Responsibility Exam (MPRE) within five years of their application.

The last time I took the MPRE was in 1983.

So this summer . . .

I spent a good chunk of time studying the American Bar Association's (ABA's)  Model Code of Professional Responsibility before taking the test a month ago.  The Model Code is the ABA's version of the rules of ethics that should govern lawyers nationwide and each state has adopted a version of it as their own.  The MPRE tests on that Model Code and on the law of ethics and professional responsibility that governs members of the legal profession generally.

Earlier this week, I learned that I passed the test and would shortly become not just a California and New York lawyer but, at the tender age of 69, a Connecticut one as well.

On Monday, President Trump appointed Lindsey Halligan as the interim US Attorney for the Eastern District of Virginia.  Halligan is a young (36) lawyer. At the time of her appointment, she was working in the White House, where her duties included investigating the Smithsonian to insure, as she put it, that the museum and its exhibits were properly "align[ed] with the President's directive to celebrate American exceptionalism, remove divisive or partisan narratives, and restore confidence in our shared cultural institutions." She had previously been an insurance lawyer  and represented Trump personally in Florida.  She has never been a prosecutor.

On Thursday, a federal grand jury in the Eastern District of Virginia indicted former FBI Director James Comey for allegedly making false statements to the US Senate almost five years ago.  The indictment alleges Comey falsely stated he had not "‘authorized someone else at the FBI to be an anonymous source in news reports' regarding the FBI's [then] investigation" of an unnamed person. A second count alleges this act obstructed justice.

Halligan was appointed this past Monday because her predecessor had resigned the Friday before. That predecessor was Erik Siebert, who Trump named to the post in January. Siebert, a career prosecutor with over fifteen years experience as an Assistant US Attorney in the office, had refused to indict another Trump target, NY Attorney General Letitia James, and attorneys in his office had also concluded there was insufficient evidence to indict Comey. Though Siebert resigned the office amidst pressure from administration officials on the James case, Trump on Saturday claimed to have fired him. On the same day, Trump told his Attorney General that the absence of criminal charges against James, Comey and California Senator Adam Schiff (yet another Trump target) "was killing our reputation and credibility" and could not be "delay[ed] any longer."

Trump was right about one thing.

Delay, at least in the Comey case, was his enemy.

The statute of limitations on the false statement charge was set to run on September 30, 2025.

So . . .

He appointed Halligan on Monday.

And she did what Trump wanted done on Thursday.

Under the Model Rules of Professional Conduct, Rule 3.8(a), a prosecutor must "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."  Section 9-27.200 of the US Department of Justice's Justice Manual imposes the same requirement on federal prosecutors. Though an indictment generally stands for the proposition that the grand jury thought there was probable cause, there are serious questions in this case regarding what Hallligan knew or should have known and what was presented to the grand jury. 

According to reporting from Alan Feuer, Jonah E. Bromwich and Maggie Haberman in The New York Times, Halligan decided to seek an indictment "despite an energetic effort by career professionals under her to dissuade her from bringing charges." This suggests that attorneys in her office with substantial experience either did not think there was probable cause or that, if there was, did not believe there was sufficient evidence to convince a jury of guilt beyond a reasonable doubt.  Halligan, however, who is not a career prosecutor, decided to disregard this advice. "In a highly unusual move for a top federal prosecutor," as the Times also reported, she also decided to "personally present[] the case against Mr. Comey to the grand jury".

As a matter of public record, there is substantial evidence that Comey did not make the false statement alleged in Thursday's indictment.  

The government's indictment claims that Comey lied to the Senate on September 30, 2020 when he supposedly told Republican Sen. Ted Cruz that he had not "'authorized someone else at the FBI to be an anonymous source in any news reports' regarding an FBI investigation concerning” an unnamed person. In May 2017, Comey testified to the Senate that he had never anonymously leaked information to the news media about "the Trump investigation or the Clinton investigation" (the former apparently relating to the FBI's investigation into Russian contacts with the Trump campaign, and the latter to the agency's investigation of Hillary Clinton's emails), and that he never authorized someone else to do so. In September 2020, in response to questions from Cruz claiming Comey’s 2017 testimony conflicted with public statements from the FBI's former Deputy Director Andrew McCabe that he, McCabe had “leaked information to the Wall Street Journal and that you were directly aware of it and directly authorized it”, Comey testified "I can only speak to my testimony" and "I stand by the testimony . . . that I gave in May 2017." As to Mr. McCabe's claims, Comey stated "Again, I'm not going to characterize Andy's testimony but mine is the same today."

The biggest problem with the government’s indictment is that McCabe himself has refuted it.

On February 17, 2019, 60 Minutes aired an interview with McCabe. In that interview, McCabe recounted a conversation he had with Comey after the leak. In that conversation, Comey said he believed McCabe was not the source of the leak and McCabe did not disabuse him of that view. "I should have corrected it," McCabe told the interviewer, "I should have spoken up and said, 'Wait a minute, that's not true'" and told Comey that he, McCabe, was responsible for the leak. 

Comey's September 2020 testimony to Cruz was thus entirely truthful. 

At the time of his May 2017 testimony, he did not even know -- according to McCabe himself -- that McCabe had been the so-called anonymous source and could not have authorized McCabe to do something he had no knowledge McCabe had done. And as Robert Hubbell, a Los Angeles attorney and the author of Today's Edition Newsletter, has noted: "By failing to speak up to admit that he leaked the information to the WSJ, McCabe allowed Comey to labor under a mistaken belief about the nature and source of the leak . . . when Comey testified to the Senate." As a result, Hubbell explained,  "No jury will convict Comey of intentionally lying to the Senate. Indeed , no judge should allow the case to get to the jury after the prosecution rests. There is simply no credible evidence to support the charge."

It's unclear whether Lindsey Halligan made any of this material known to the grand jury that just indicted Comey.  Nor do we know whether she disclosed the DOJ Inspector General's February 2018 Report to the grand jury.  That Report specifically concluded, as Hubbell's Newsletter also noted, that McCabe had not told the truth (i) "when he told Comey . . . that McCabe had not authorized the disclosure and did not know who did"; (ii) when he told "FBI agents under oath that he had not authorized the disclosure"; and (iii) when he told the Inspector General "that he told Comey on October 31, 2016, that he had authorized disclosure to the WSJ."

Under these circumstances, it is difficult to conclude that Halligan had probable cause to indict Comey.  The claim that Comey's authorization denial in his September 2020 testimony -- where Cruz confronted him with his prior statements and McCabe's contrary assertions --  is false depends on his May 2017 testimony being false since all Comey said in 2020 was that he stood by what he said in 2017. And that May 2017 testimony can make the September 2020 testimony false only if McCabe was lying to CBS but telling the truth to the Inspector General. Critically, if the government is now claiming Comey lied to the Senate in 2020 because he had authorized a leak through someone other than McCabe, the 2020 testimony is beside the point (and certainly not false as to that claim) because all of what Comey said to Cruz in 2020 related to a supposed conflict between Comey and McCabe and Comey's adherence to his 2017 testimony was responsive to that asserted conflict.  Cruz never asked him if he had authorized a leak through anyone else and he never said he had or had not. 

Apart from these more or less disqualifying facts is the reality that this prosecution, unlike those that were initiated against Trump in 2023 and 2024, was obviously ordered or at the very least aggressively demanded by Trump himself, and that the President, again in contrast to the proceedings against him, is repeatedly demeaning Comey and characterizing him in ways designed to maximize public opposition and promote a guilty verdict. Trump has called Comey "corrupt", "sick", a "liar", a "dirty cop" and a "bad person" who "did terrible things at the FBI".  He admitted wanting to get rid of the US Attorney, Siebert, who was refusing to indict Comey, and he openly pressured Attorney General Bondi to have the DOJ act against Comey because time was running out. In replacing Siebert, he appointed as US Attorney a lawyer, Halligan, who had previously represented him and whose loyalty he expected to result, as it has, in Comey’s indictment, and who did so notwithstanding professional views, and there were many, opposing that course given the woefully insufficient evidence for the alleged crime.

Nothing like this happened between 2021 and early 2025 when Biden was President.

And the  likelihood that either Halligan or the Attorney General ever tried to stop Trump from interfering or from publicly demeaning Comey, is . . .

To give understatement new meaning . . .

Remote.

The ABA’s Rule 3.8 requiring probable cause is followed by comments. 

In the first comment to that Rule, the ABA states that "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, [and] that guilt is decided upon the basis of sufficient evidence." Model Rule 8.4 makes it "professional misconduct for a lawyer . . . to violate or attempt to violate the Rules of Professional Conduct, knowingly assist another to do so, or do so through the acts of another."  The first comment to Rule 3.8 also notes that "applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4". 

Among those obligations is the duty also set forth in Rule 3.8 to "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent . . . other persons . . . associated with the prosecutor . . . from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule." Rule 3.6 precludes a lawyer investigating or litigating a matter from making "extrajudicial statements that  . . . will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."  

Maybe I am not the only lawyer who should have been boning up on their knowledge of the Rules of Professional Conduct this summer.