One of the most scathing passages in Jim Comey’s reply brief on his vindictive prosecution claim repeats something Media Matters does persistently to understand how Donald Trump’s brain works.
It’s a reply to this passage of the government response, which is the cornerstone to their claim that Donald Trump’s years of attacks on Comey weren’t animus, they reflected, instead, a sound concern about crime.
The defendant argues that he’s being prosecuted to punish him for being a “[v]ocal [c]ritic of President Trump.” Def. Mem., Dkt. No. 59 at 11. Yet according to his own version of events, the earliest that he “spoke out on public and political issues” was June 8, 2017. Id.; see Def. Mem., Dkt. No. 59-4 at 2 (pinning the earliest exercise of the defendant’s First Amendment rights to criticize the Trump Administration to a New York Times article published on June 8, 2017). By that point, however, the President had already accused him of committing a crime. On May 21, [sic] 2017, less than three weeks after the defendant first testified that he never “authorized anyone at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation,” Def. Mem., Dkt. No. 59-2 at 4, the President publicly accused him of giving “false or misleading testimony,” Def. Mem., Dkt. No. 59-4 at 2. That accusation of criminal conduct was mounted before the defendant first stepped into his self-described role as a vocal critic of the President. And that “sequence of public events” should disabuse any notion that the defendant is being punished for exercising his First Amendment rights. See Wilson, 262 F.3d at 317 (reasoning that a defendant’s “theory on proving causation” will be “belied by the record” if the government’s “efforts to prosecute [him] preceded” his exercise of a protected right).
I focused closely on this passage — on other problems with this passage — here, noting that prosecutors had kicked off a fight about chickens and eggs.
I didn’t note that Lindsey’s Loaner AUSAs got the date wrong, May 21 instead of May 31 (Comey was generous enough not to note it), a date correctly recorded in both Comey’s appendices collecting these things (one, two).
[Note my screen cap is +5.]
But I missed the even bigger problem with this argument.
Lindsey’s Loaner AUSAs didn’t check what Trump was watching on Fox and Friends that day.
On May 19, 2017, in the uproar that followed, the Senate Intelligence Committee announced that Mr. Comey would testify before the Committee about his dismissal and the investigation into Russian interference with the 2016 election. Former FBI Director Comey Agrees to Testify in Open Session at Senate Intel Committee, U.S. Senate Select Committee on Intelligence (May 19, 2017), https://perma.cc/HC5K-KYUV.
That announcement was followed on May 31, 2017, by the first of the President’s allusions to “false or misleading” testimony by Mr. Comey. The government suggests that this tweet shows that the President’s prosecutorial motive arose from Mr. Comey’s May 3, 2017 Senate Judiciary Committee testimony and that he voiced it before Mr. Comey entered into public debate. ECF No. 138 at 28. The tweet shows nothing of the kind.
To begin, the tweet does not reflect the President’s opinion about Mr. Comey, nor does it refer to Mr. Comey’s May 3 testimony as the government misleadingly implies. Instead, the tweet quotes a report based on a conversation on Fox and Friends describing a letter written by former Trump campaign advisor Carter Page stating Page’s view of Mr. Comey’s March 20, 2017 testimony about links between the Trump campaign and the Russia government.5 This tweet can hardly qualify as expressing the President’s legitimate prosecutorial motive—as opposed to relaying hearsay from a television program with no factual basis. In fact, it is the type of unfounded accusation that displays animus rather than a genuine interest in justice. And despite the government’s reliance on it as preceding Mr. Comey’s public statements, the tweet came after the news broke about Mr. Comey’s imminent testimony, i.e., after the President knew that Mr. Comey intended to exercise his First Amendment rights to speak publicly about Mr. Trump’s conduct in office. The President’s preemptive effort to discredit Mr. Comey reflects his animus triggered by Mr. Comey’s anticipated protected speech.
Finally, and most damaging to the government’s theory of the President’s longstanding prosecutorial motive to bring this case, the tweet has nothing to do with this prosecution: it was issued years before the testimony that forms the basis for the charges against Mr. Comey.
5 The tweet (issued in two parts) says: “So now it is reported that the Democrats who have excoriated Carter Page about Russia, don’t want him to testify. He blows away their….” “…case against him & now wants to clear his name by showing ‘the false or misleading testimony by James Comey, John Brennan…’ Witch Hunt!” Appendix at 1. The tweet was issued thirty minutes after Fox and Friends broke the same story. Id. And Mr. Comey had testified publicly before the House Intelligence Committee on March 20, 2017, to confirm the Trump-campaign and Russian-interference investigation. See Mueller Report, supra n.4 at 52-53
Trump was parroting Carter Page complaining about Comey’s March 20 testimony, not commenting on Comey’s May 3 testimony, testimony that prosecutors want to make relevant to this case.
Donald Trump was parroting Carter Page and that’s what prosecutors claimed was the genesis of Trump’s purported good faith prosecutorial concern about Comey’s leaking.
Oops.
There is, to be clear, a fair amount of chicken and egg in Comey’s reply, too, some not entirely persuasive (though that pertains to their representation of the evidence prosecutors presented, not the legal argument, and so could be mooted if some of this gets suppressed). But it reads with the confidence of people who, now, have the exhibits with which prosecutors hope to prove their case, as well as a sense of whether and if so which exhibits will be thrown out as unlawfully obtained.
And in the process, Comey has demonstrated to the Loaner AUSAs how little they know about this whole story and the man whose batshit rants they’re treating as credible.