Attorney and RCP contributor Richard Porter joined Friday’s edition of the RealClearPolitics podcast to discuss the legal strategy behind the James Comey indictment and what happens next if the former FBI director takes it to trial. “It’s certainly highly unusual for the president to be commenting on a specific case. But this case is ultimately about Trump too, right?” Porter said. “The issue is that the FBI director worked with the then-sitting president to try to concoct criminal charges against the incoming president — and then lied to Congress about it.” “Prosecutions rarely occur where what’s really at stake is an attempt to overthrow the presidency.” “First, the venue is the Eastern District of Virginia, not D.C., where Congress sits. Because of COVID, Comey’s testimony on September 30, 2020, was via Zoom from his home. That’s why the Eastern District is proper,” he explained. “Second, the case is really about the meaning of ‘authorized.’ So this is a case like ‘what the meaning of is is,’ the hair-splitting lawyers love to do. Did Comey authorize leaks from the FBI before or after the fact? McCabe testified that he did leak information and told Comey, and Comey seemed to concur. Does authorization have to occur beforehand, or is after-the-fact approval enough? That’s the hair-splitting.” “In plain language, Comey and McCabe were working together to try to bring down the president. The Senate was investigating Crossfire Hurricane-the FBI’s Trump-Russia probe. Comey pretended everything was fine and denied authorizing leaks to The New York Times.” “One of the questions the jury pool is likely to be asked is: Did you hear the president?” he said. “You already have a tough jury pool in the Eastern District of Virginia. It’s a lot of government employees. It’s a heavily Democratic voting area. It’s not much more neutral than the D.C. court would have been.” “It’s an unusual case in that it’s really ultimately about Trump, in the sense that they’re trying to get to the bottom of what was going on in 2017 and thereafter with regard to the Russia collusion case, what happened in 2016 with Operation Crossfire Hurricane. They’re trying to establish for history and the future what happened to Trump. Ultimately, that’s what the case is about,” Porter said.
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