More Trouble for the Comey
Indictment?
Friday, November 7, 2025, 2:58 PM
Public documents may undermine a core
premise underlying the charges against James Comey.
When a
Virginia grand jury returned a two-count indictment against former FBI Director James
Comey in September, one of the most striking features of the
document was not what it said, but rather what it left unsaid.
The
indictment charged Comey with obstructing justice and lying to Congress during
his 2020 testimony before the Senate Judiciary Committee. Prosecutors
specifically allege that Comey falsely denied ever authorizing someone “at the
FBI” to serve as an anonymous source in news reports concerning the Bureau’s
investigation of Hillary Clinton. According to the indictment, Comey had “in
fact had authorized PERSON 3” to serve in that role. But the otherwise
threadbare charging document offered few clues about the underlying
facts—leaving many, including Comey’s own defense counsel, mystified as to
the factual basis for the charges.
The
case came into sharper focus earlier this week. On Monday, federal prosecutors filed a 48-page brief opposing Comey’s motion to dismiss on the grounds
of selective or vindictive prosecution. Comey’s motion contends that the
charges were brought out of personal animus that President Donald J. Trump
harbors against Comey, whom he had fired during his first term. In response,
the government defended the Justice Department’s motives and laid out, for the
first time, the factual foundation of its case.
At the
center of that narrative is the indictment’s “PERSON 3”, whom the government
has identified as Daniel Richman. Richman—a
Columbia University law professor, former federal prosecutor, and longtime
confidant of Comey—performed intermittent consulting work for the FBI beginning
in 2015. According to prosecutors, Richman is the person “at the FBI” whom
Comey allegedly “authorized” to anonymously leak information to the press about
the Clinton investigation. In an apparent effort to support this allegation,
the filing details a series of communications between Richman and Comey, or
between Richman and third parties, spanning from a period between October 2016
to May 2017.
On
Tuesday, Benjamin Wittes and I published a lengthy analysis of the government’s brief in Lawfare,
surmising that the case against Comey is “unspeakably, breathtakingly devoid of
merit.” Nothing in the brief, we concluded, comes close to proving that the
former FBI director lied to Congress.
But
when you look beyond the litigation documents themselves, it turns out the
government’s case may be even weaker than it seemed. Its flaws are compounded
by an additional problem that warrants closer scrutiny: the timeline of
Richman’s employment.
At the
core of the prosecution’s argument is the claim that Comey authorized someone
“at the FBI” to speak to reporters anonymously. The government asserts that
Richman is that someone, and that he was at the FBI because he held the status
of a special government employee “since 2015.” What the brief omits, however,
is whether that status was continuous—or when it ended.
Those
omissions turn out to be critically important details. In recent weeks, several
of us at Lawfare have reviewed a tranche
of publicly available agency records pertaining to Richman’s
appointment and scope of employment at the FBI. The documents suggest that
Richman—the alleged anonymous source “at the FBI”—may not have been officially
employed by the Bureau during any of the communications cited in the government’s
brief.
The
documents in question came to light as a result of litigation brought against
the FBI on behalf of a right-wing website, the Daily Caller. Under the Freedom
of Information Act (FOIA), the Daily Caller sought “all records,
documents, and communications pertaining to Daniel Richman, a Special
Government Employee hired by former FBI Director James Comey.” In turn, the
FBI agreed to provide various categories of documents related
to Richman’s work for the Bureau, including “records located in an
Office of General Counsel file discussing Richman’s position and job duties.”
The case came to an end in 2021, when the parties stipulated to a voluntary
dismissal of the suit. Records produced by the FBI related to Richman’s
employment are now available on the
FBI’s website, which publishes materials produced under the Freedom
of Information Act.
To be
sure, Freedom of Information Act productions may not reflect the full universe
of relevant documents, as exemptions and omissions are common. The materials
that are available, however, appear to establish a clear chronology related to
Richman’s employment status at the Bureau. That timeline, in turn, may further
complicate the government’s already convoluted case against Comey.
So,
what do the materials show?
According
to the records, Richman’s first appointment as a special government
employee began on June 30, 2015. He was brought on to advise senior FBI
leadership on the “Going Dark” issue—a reference to the challenges posed to
U.S. law enforcement capabilities by evolving technologies, such as end-to-end
encryption. The subject matter of his consulting for the Bureau later expanded to include other issues, including an
“examination of the implications of federal investigations being brought to
state and local prosecutors.” Richman’s original appointment letter specified
that he would perform this work “without compensation” on a “part-time and/or
intermittent basis” for a one-year term, with the possibility of reappointment
at the Bureau’s discretion. Documentation expanding the scope of his role
confirmed that those terms remained in place.
This
is where things begin to get awkward for the prosecution. On June 30, 2016—one
year after his initial appointment—Richman’s term as a special government
employee expired. That day, an employee at the FBI’s Human Resources Division emailed a
colleague at the Office of General Counsel, which had sponsored Richman’s
initial appointment. “Just a friendly reminder that Mr. Richman’s 1st term has expired today,” the person wrote. “Please send in the EC
request for reappointment.”
For
reasons that remain unclear, however, Richman was not immediately reappointed.
Over the next several months, employees at the Human Resources Division
repeatedly followed up on the matter. On Oct. 27, 2016, one wrote: “Just a friendly reminder that
please provide the file and serial numbers to reappoint 2nd term for Mr. Richman. His 1st term has expired on 6/30/2016.” In reply, a program
analyst with the Office of General Counsel explained that the Richman matter
remained pending because “the Director’s Chief of Staff and GC Baker are still
discussing the details of his reappointment.”
By
mid-November, records show that the Office of General Counsel had submitted
a request for Richman’s reappointment, noting
that he would continue to consult on the “Going Dark” problem and acknowledging
that his first term as a special government employee had expired. The next
month, on Dec. 14, 2016, the Human Resources Division approved the
reappointment request. It sent the relevant paperwork to the Office
of General Counsel with explicit instructions: “ensure that [Richman] signs the
acknowledgement form.”
Apparently,
he never did. Documents produced in relation to the Daily Caller suit indicate
that Richman neglected to sign his reappointment papers. One FBI official
emphasized this point in a hand-written note included among the FOIA
materials: “Doc drawn up + sent to OGC for Richman signature. Never signed.
Never officially reappointed after June 2016.” Which raises an
important question: Was he ever “officially” reappointed after his first term
expired on June 30, 2016? And if not, was he really “at the FBI” at the time of
the alleged communications on which the government’s case depends?
In any
event, Richman’s second term as a special government employee—if it ever
officially took effect—was short-lived. According to internal FBI emails, he resigned from the Bureau on Feb. 7,
2017.
With
these facts in view, it becomes clear why the government might have preferred
to obscure the precise dates of Richman’s formal affiliation with the FBI:
Every single one of the communications cited in the government’s brief took
place either after Richman’s initial term had lapsed and before any valid
reappointment occurred, or after he had resigned.
A
closer look at the actual dates makes the problem for the prosecution plain. In
its response to Comey’s motion to dismiss, the government cites the following
series of interactions between Richman and Comey, as well as Richman and
others:
- An email chain between Comey and
Richman spanning from Oct. 29. to Nov. 2, 2016.
- Feb. 11, 2017 emails between Richman
and Chuck Rosenberg, then the head of the Drug Enforcement Administration.
- An April 23, 2017 email exchange between Comey and Richman.
- A May 11 to May 17, 2017 text thread between
Richman and Michael Schmidt, a reporter for the New York Times.
The
document presents these communications in an apparent effort to support the
idea that Comey authorized someone at the FBI—namely, Richman—to serve as an
anonymous source in news reports about the Clinton investigation. But three of
the four interactions occurred after Richman unequivocally
resigned from the FBI, on Feb. 7, 2017. The remaining communications took place
in the fall of 2016, well after Richman’s initial appointment as a special
government employee had expired and before his reappointment was approved on
Dec. 14, 2016.
In
other words, during none of the relevant communications was Richman an employee
“at the FBI” in the technical sense—a fact that should make any prosecutor
think twice about pursuing this charge, even before one gets to the separate
question of whether any of the communications show that Comey authorized Richman
to serve as an anonymous source about the Clinton
investigation.
It’s
possible that the prosecution is willing to gamble that 12 reasonable jurors
would turn a blind eye to the formal status of Richman’s
employment. After all, the question posed to Comey during his Congressional
testimony asked whether he had authorized someone “at the FBI” to anonymously
engage with the press—not whether he authorized an “employee” of the FBI to do
so.
To
that end, there is evidence among the FOIA documents suggesting that Richman
did indeed carry out some intermittent work with the FBI during the months-long
period between the expiration of his initial appointment in June 2016 and his
formal reappointment in December 2016. That fall, for example, he organized a closed-door discussion
between FBI officials and Columbia academics regarding the “Going Dark”
problem. He also maintained access to his FBI email account, and internal
records suggest that some FBI officials may have considered him to be affiliated
with the Bureau even after his first appointment lapsed.
But
some of the evidence could cut the other way. By January 2017, Richman’s GSA
access card—a card used for building access by federal employees and
contractors—had expired, according to emails he sent
during that time. Additionally, Richman apparently never took a required ethics
training for special government employees in 2016.
And
it’s difficult to argue that Richman’s formal employment status is entirely
irrelevant to whether he was “at the FBI”—particularly given that the ambiguity
of that phrase is already a contested issue in the case. In one of
Comey’s pre-trial motions to dismiss, the defense
argues that the questions posed to Comey during his testimony were fatally
vague. There was no reason, the defense contends, to interpret “at the FBI” as
referring to anyone other than full-time employees, rather than part-time or
intermittent consultants like Richman. The uncertainty over Richman’s formal employment
status further reinforces the view that his affiliation with the FBI was
attenuated—he was arguably never “at the FBI” in the sense a
reasonable person would understand the phrase.
This
all may seem like a preposterous exercise in splitting hairs. But getting the
technicalities wrong can be meaningful, particularly when they’re part of
allegations in a criminal indictment, which the government must prove beyond a
reasonable doubt. If Richman was not, in fact, “at the FBI,” the government’s
case against Comey will likely collapse. That’s because, in support of the
false statements charge in Count One, the barebones indictment offers nothing more
than that the allegation that Comey lied when he testified that he’d never
“authorized someone else at the FBI to be an anonymous source in news reports.”
But for Comey’s statement to be false, the person he allegedly authorized—Richman—must
have been “at the FBI.”
All of
which raises the question of whether the prosecution has fully reckoned with
the factual and legal ambiguities in its own case. At Comey’s arraignment in
October, Assistant United States Attorney Nathaniel Lemmons told the presiding
judge that the prosecution team was “just getting our hands around” the
evidence in the case. Nearly a month later, during a Nov. 5 hearing, it
appeared that little progress had been made—prompting the magistrate judge,
William Fitzpatrick, to chastise the government for its “indict first,
investigate second” approach. Such a method, Fitzpatrick warned, “creates
procedural challenges and substantive challenges.”
Challenges,
indeed.
Editor’s note: James Comey and Daniel Richman are occasional
contributors to Lawfare. For this article, Richman declined to
comment, and the Justice Department did not respond to a request for comment.
