This motion presents a fascinating challenge to a federal criminal prosecution based on congressional testimony. Let me break down what’s happening here and why the defense believes these charges should be dismissed before trial.
Assistance from Claude AI.
The Core Issue
James Comey has been charged with two crimes stemming from testimony he gave to the Senate Judiciary Committee in September 2020. The prosecution centers on approximately sixty seconds of testimony during an exchange with Senator Ted Cruz about whether Comey had authorized FBI personnel to serve as anonymous sources to reporters. The government claims Comey lied, but Comey’s defense argues that the questions he was asked were so unclear and his answers so literally truthful that no crime occurred.
The Factual Setup
The story involves two separate testimonies three years apart. In May 2017, Senator Grassley asked Comey directly whether he had ever authorized someone at the FBI to be an anonymous source in news reports about the Trump or Clinton investigations. Comey answered “No.” Fast forward to September 2020, when Senator Cruz brought up that prior testimony and claimed it conflicted with statements by Andrew McCabe, the former FBI Deputy Director, who allegedly said he leaked information to the Wall Street Journal with Comey’s knowledge and authorization.
The indictment alleges that Comey’s 2020 testimony was false because he had actually authorized Daniel Richman (identified in court papers as “PERSON 3”) to serve as an anonymous source regarding the Hillary Clinton investigation (identified as “PERSON 1”). However, and this is crucial, Senator Cruz never mentioned Richman during his questioning and focused entirely on McCabe.
The Legal Arguments
The motion advances three independent grounds for dismissal, each rooted in well-established criminal law principles:
First Argument: Fundamentally Ambiguous Questions
The defense argues that Senator Cruz’s questions were so unclear that they cannot legally support a false statement charge. This concept of “fundamental ambiguity” is grounded in Supreme Court precedent, particularly Bronston v. United States, which established that prosecutors cannot convict someone for answering an imprecise question in a way the government later decides to interpret unfavorably.
The motion identifies several sources of ambiguity in Cruz’s questioning. First, Cruz asked compound questions that merged multiple inquiries into single questions requiring single answers. He would reference Comey’s broad 2017 statement about not authorizing “anyone” at the FBI to be a source, but then immediately narrow his focus to ask specifically about McCabe. This created confusion about what Comey was actually being asked to address.
Second, the context of the exchange shows Cruz was fixated on the supposed contradiction between Comey and McCabe. Cruz asked “Who’s telling the truth?” and later asked whether McCabe was lying. These questions naturally invited Comey to respond specifically about McCabe, not about FBI personnel generally or Richman specifically. The motion argues that any reasonable person listening to this exchange would understand Cruz to be asking only about McCabe.
Third, Cruz’s questions contained other problematic language. He referenced the “Trump investigation” (which didn’t technically exist in the way he described it) and the “Clinton administration” (rather than Clinton investigation). He used temporal words like “ever” and “never” that made the questions difficult to answer with precision. And he referred to authorizing “someone else at the FBI” without clarifying whether this meant full-time employees stationed at FBI headquarters (like McCabe) or special government employees working elsewhere (like Richman, who lived in New York).
The defense cites compelling precedent here. In United States v. Serafini, the Third Circuit dismissed a false statement charge where the government asked a “sandwiched” question that appeared broad on its face but was surrounded by narrow questions, making it ambiguous what was really being asked. Similarly, in United States v. Landau, a court found compound questions fundamentally ambiguous when they merged separate inquiries but sought only a single response.
Second Argument: Literally True Answers
Even if the questions weren’t ambiguous, the motion argues Comey’s answers were literally true and therefore cannot support a criminal charge. This is another principle from Bronston, which held that witnesses cannot be prosecuted simply for giving non-responsive but truthful answers, even if they successfully avoid revealing damaging information.
When Cruz asked “Who’s telling the truth?” Comey responded: “I can only speak to my testimony. I stand by the testimony you summarized that I gave in May of 2017.” This answer, while not directly addressing whether McCabe was lying, was literally true. Comey could only speak to his own testimony, and he did stand by his prior statements (regardless of whether those statements were themselves accurate).
Similarly, when Cruz asked whether McCabe was not telling the truth, Comey replied: “I’m not going to characterize Andy’s testimony, but mine is the same today.” Again, literally true. Comey was in fact declining to characterize McCabe’s testimony, and his position was indeed the same as before.
The Fourth Circuit has repeatedly upheld this literal truth defense. The motion cites cases where convictions were reversed because defendants gave technically accurate answers even when those answers might have been misleading or evasive. The principle is that it’s the questioner’s job to ask follow-up questions and pin down evasive witnesses, not the prosecutor’s job to later reinterpret testimony as criminal.
Third Argument: Count Two Is Fatally Vague
Count Two charges Comey with corruptly endeavoring to obstruct a Senate investigation by making “false and misleading statements.” But the indictment never specifies which statements were false, which investigation was obstructed, or how Comey acted corruptly. This violates Comey’s constitutional right to be informed of the charges against him so he can prepare a defense.
The motion argues this vagueness is especially problematic given that Comey testified for four hours covering many topics. The government cannot secure an indictment based on one statement and then switch to different statements at trial. If Count Two relies on the same testimony as Count One, it should be dismissed for the same reasons. Otherwise, it should be dismissed for lack of specificity.
The Strategic Context
What makes this motion particularly strong is how it uses the government’s own presentation against them. The indictment conspicuously omits Senator Cruz’s actual questions, quoting only fragments and removing the context that shows Cruz was focused on McCabe. By reconstructing the full exchange, the defense demonstrates that the indictment artificially creates an appearance of falsity by “lifting a statement of the accused out of its immediate context” and giving it a meaning different from what the context shows.
The motion also points out that Cruz mischaracterized McCabe’s actual statements. The Department of Justice Inspector General had found more than two years before this hearing that McCabe did not consult with Comey before talking to news outlets, contrary to what Cruz claimed. This further underscores that Cruz’s line of questioning was about McCabe specifically, not about FBI personnel generally.
Why This Matters
This motion raises fundamental questions about how far prosecutors can go in interpreting congressional testimony. If the government can take fragments of testimony, strip away context, and impose after-the-fact interpretations to create criminal charges, it would dramatically chill truthful testimony before Congress. The law places the burden on questioners to ask clear questions, not on witnesses to anticipate every possible interpretation of ambiguous questions.
The motion seeks dismissal under Federal Rule of Criminal Procedure 12(b)(3)(A), which allows pre-trial dismissal when the indictment fails to state an offense. If successful, this would end the prosecution entirely without requiring a trial, though presumably with prejudice so the charges cannot be refiled.