In a piece for Lawfare published Wednesday, legal analysts Benjamin Wittes and Anna Bower argued that the Justice Department has little chance of successfully prosecuting former FBI Director James Comey, despite pressure from President Donald Trump to move forward.
The authors pointed out that the statute of limitations on potential charges connected to Comey’s September 30, 2020 Senate testimony expires within days, leaving prosecutors with only a narrow window to act.
"At least as regards Comey, you don’t have a lot of time. The key statute of limitation runs out in six days; after that, any case gets exponentially harder. So you have a brief window in which to decide whether or not you really want to pursue this," they wrote.
But even if the prosecutors pursue charges, Wittes and Bower wrote, the legal theories available are weak and unlikely to survive scrutiny.
Nearly all potential charges center on whether Comey made false statements about authorizing leaks or his handling of sensitive information. Yet prior investigations, including those overseen during Trump’s own administration, declined to bring cases against Comey or others tied to the same disclosures.
The evidence, they noted, often points to contradictions or disputed recollections rather than intentional falsehoods.
One example involves Comey’s testimony about leaks connected to former Deputy FBI Director Andrew McCabe. While McCabe and Comey gave conflicting accounts, the Justice Department inspector general ultimately found McCabe’s statements to be unreliable and declined to charge Comey.
Prosecutors also previously examined disclosures involving Comey’s friend and adviser Daniel Richman but concluded there was insufficient evidence to prove Comey directed him to leak information.
Other avenues, such as tying Comey to an alleged conspiracy dating back to 2016, are even more tenuous, the analysts argued. Such theories have been floated by Trump officials like John Ratcliffe and Stephen Miller but lack a clear underlying crime — a requirement for any conspiracy charge.
“With every possible path, prosecutors run into a dead end,” Wittes and Bower write, adding that any attempt to indict Comey would likely fail before a grand jury or in court.
They concluded that whether the Justice Department pursues charges against Comey, declines to act, or shifts focus to other Trump targets like New York Attorney General Letitia James, the outcome is the same.
“You lose by going after James Comey,” the authors wrote.
