Thread by @realjusthuman

United States v. Comey

Motion to Dismiss Based on Fundamental Ambiguity and Literal Truth
🧵

"after speaking for more than a minute, Senator Ted Cruz asked Mr. Comey to recall statements he had made three years earlier and to simultaneously address statements that Senator Cruz incorrectly claimed were made by Andrew McCabe, the former Deputy Director of the Federal Bureau of Investigation (FBI). In doing so, Senator Cruz never indicated that he wanted Mr. Comey to address the statements or activities of any person except for Mr. McCabe."

Here's the May 3, 2017 exchange between Sen Grassley and FBI Director Comey

Here's the September 30, 2020 exchange between sen Cruz and Fmr FBI Director Comey

"The colloquy thus reflects that Senator Cruz’s questions focused exclusively on an asserted contradiction between Mr. McCabe and Mr. Comey."

Footnote 3:

Sen Cruz "mischaracterized Mr. McCabe’s actual statements in claiming a contradiction between Mr. McCabe’s account and Mr. Comey’s testimony. There is no record of Mr. McCabe ever stating that Mr. Comey authorized him to leak information to the Wall Street Journal, much less a record of “repeated” and “public” statements to that effect."

At the time of Comey being asked these questions by Cruz, Comey had already been cleared by IG Horowitz of authorizing McCabe to leak to the WSJ.

Horowitz determined that McCabe leaked info to the WSJ via Lisa Page and then lied about it to Comey, to INSD agents, and to IG investigators.

"Fundamental to any false statement charge are both clear questions and false answers. Neither exists here."

"An “answer to a fundamentally ambiguous question may not, as a matter of law, form the basis for a false statement” under Section 1001(a)(2)."

"A question is fundamentally ambiguous if there are multiple ways to interpret it"

And "Senator Cruz’s questions are fundamentally ambiguous"

"Senator Cruz asked Mr. Comey two questions, each of which contained a discrete inquiry about Mr. McCabe and a discrete inquiry about FBI officials more broadly."

Cruz first described the May 3rd, 2017 exchange between Grassley and Comey

"Cruz did not stop and ask Mr. Comey whether his statements to Senator Grassley were true. Instead, he continued on to describe a statement by Mr. McCabe:"

"By structuring his question that way, Senator Cruz raised two issues...

But instead of asking Mr. Comey to address each of those issues separately, he only asked Mr. Comey to address the question of whether Mr. Comey or Mr. McCabe was telling the truth."

"By structuring his comment and question that way, Senator Cruz signaled to Mr. Comey that he should specifically address the question about whether Mr. McCabe was lying."

"each of Senator Cruz’s questions compounded two separate inquiries—whether Mr. Comey was telling the truth in 2017 and whether Mr. Comey had authorized Mr. McCabe to be an anonymous source—but asked for the equivalent of a “yes” or “no” response only as to the second inquiry."

Plus, Sen. Cruz had "confronted Mr. Comey with an inaccurate account of Mr. McCabe’s statements."

"the best—and perhaps only—way for Mr. Comey to" respond to Sen. Cruz's compound and ambiguous question was to interpret it as being narrowly about McCabe, as that was the specific person Cruz was bringing up and was directly asking Comey to address,

“And Mr. McCabe when if he says contrary is not telling the truth, is that correct?”

"a reasonable witness most readily would have understood Senator Cruz to be asking him to specifically address whether he had authorized Mr. McCabe to serve as a source to the Wall Street Journal."

"As the indictment frames it, Senator Cruz’s question was whether Mr. Comey had “authorized someone else at the FBI to be an anonymous source in news reports.”...But that quoted language is taken from a statement by Senator Cruz that is a preface to the question that followed four seconds later."

"Context thus underscores that Count One rests on a fundamentally ambiguous question."

Other problems with Senator Cruz's questioning:

"As of May 3, 2017, there was no “Trump investigation,”"

And both President Trump and Congress knew this.

It was a Democrat, GOPe, and Media lie that the FBI was investigation Trump.

A lie that people still repeat and believe to this day.

Another problem is that Grassley had asked Comey about a leak concerning the Clinton investigation (Email and Foundation).

And THAT is what McCabe had leaked information about to the WSJ. So again, Cruz's question is most easily and logically interpreted to be about McCabe.

"Senator Cruz’s use of the words “never” and “ever” injected additional ambiguity."

"when Senator Cruz referenced Senator Grassley’s question about whether Mr. Comey authorized “someone else at the FBI” to serve as anonymous source, there was no reason to assume that he was referring to anyone but full-time employees like Mr. McCabe"

Who had been caught leaking and was referenced by Cruz in the questioning.

"On October 15, 2025, the government confirmed to the defense that PERSON 3 refers to Daniel Richman and PERSON 1 refers to Hillary Clinton. But as noted, a reasonable person could have understood Senator Cruz’s questions to be entirely unrelated to Mr. Richman or anyone else at the FBI—and to have focused on Mr. McCabe alone."

Drilling down into the context of the May 3, 2017 exchanges between Grassley and Comey, and this is from me, not the motion to dismiss, look at the context of those.

I've labeled and boxed each question in the transcript screenshots.

Questions 1 and 2 are what Cruz later brings up, and partially misquotes, in the September 2020 exchange, which now forms the basis for the false statements charge against Comey.

But look at the context of those questions from Grassley and the follow-ups.

Question 3 asks if there are investigations into the leaks of classified info to the media and includes the disclaimer, "Without getting into any particular article — I want to emphasize that, without getting into any particular article"

That disclaimer is there because both Grassley and Comey know which leaks they are talking about here: the one to the WSJ from October 30, 2016.

And both knew that Comey was already investigating it and that it was a highly sensitive investigation. One of a half dozen or so leak investigations.

So Grassley is attempting to maneuver around what they can't talk about in a public hearing in trying to get an answer.

And Comey's answer brings up the notion of other agencies being brought in, which is what happened. INSD plus IG Horowitz were brought in for the WSJ leak, Postal Inspectors and John H. Durham were brought in for Tropic Vortex, etc.

Now check question 5. Grassley brings up the small group of people ("several senior FBI officials") that would have had access to the highly classified information that leaked to the WSJ in Oct 2016.

And who does he specifically raise?

McCabe, "the deputy director."

So, the context of the ORIGINAL set of questions from Grassley that Cruz later referenced when he asked Comey about his answers was:

Leaks of classified information to the media and Andy friggin McCabe being one of the only people who had access to that classified information.

Andy McCabe.

Who the IG had ALREADY pinned down as the leaker of that classified information.

See video at 48:25
judiciary.senate.gov/committee-acti…

Transcript here
archive.is/8WPkY

Here is the article that McCabe, through Lisa Page, leaked classified info for
archive.is/TvGVv

Now, back to the motion to dismiss.

Thread continues...

The Comey indictment is fundamentally flawed because it:

"impermissibly 'lifts[s] a statement of the accused out of its immediate context' and 'giv[es] it a meaning wholly different than that which its context clearly shows.'

As a result, Count One cannot “be sustained.”"

"Regardless of whether Senator Cruz’s questions were fundamentally ambiguous, the Court should also dismiss Count One because Mr. Comey’s answers were literally true."

"the Senator posed two questions to Mr. Comey. The first question was: between Mr. Comey and Mr. McCabe, “Who’s telling the truth?”"

"Mr. Comey could only speak to his own testimony—he could not read Mr. McCabe’s mind and know whether Mr. McCabe intentionally lied in the statements described by Senator Cruz. This is all the more true where Senator Cruz cited statements that Mr. McCabe simply had not made. Likewise, Mr. Comey’s statement that he stood by his prior testimony was truthful regardless of whether that prior testimony was itself truthful."

Declining to directly respond to Cruz's second question, Comey "instead stated that he was “not going to characterize Andy’s testimony, but mine is the same today.”

Again, that response is literally true."

And when Comey affirmed that "[my testimony] is the same today."

That was also literally true as he didn't revise his prior testimony.

"Mr. Comey firmly maintains that his prior testimony was truthful."

"Further, as detailed above, Senator Cruz’s questions referenced whether Mr. Comey authorized anonymous sources to report on the “Trump investigation,” which did not exist during his tenure as FBI Director, and the “Clinton administration,” which had ended nearly 17 years earlier."

"In sum, although Mr. Comey did not respond directly to Senator Cruz’s questions, his responses were literally true. Section 1001(a)(2) does not criminalize non-responsive testimony—it criminalizes only false testimony. And Mr. Comey’s testimony here cannot plausibly be characterized as false."

"Accordingly, regardless of whether Senator Cruz’s questions were fundamentally ambiguous, Count One should be dismissed on the independent basis that Mr. Comey’s answers were literally true."

"To the extent Count Two rests on the same false statements as Count One, that count should also be dismissed for the reasons set forth herein. But as it stands, Count Two’s lack of specificity renders it inherently and separately defective for failing to provide adequate notice to Mr. Comey of the charge against which he must defend."

"And surely the government does not believe that it may secure an indictment based on one statement placed before the grand jury and then switch to a different statement at trial. That tactic would defeat the entire purpose of the grand jury performing its charging function."

Addition: in the post in this thread that begins "Drilling down into the context..."

I wanted to add information about the other leaks that Comey and Grassley had or may have had on their minds in their May 3, 2017 exchanges.

Prior to the election and within a day of the article I already cited above which McCabe through Page was the source for, this article was published:

Investigating Donald Trump, F.B.I. Sees No Clear Link to Russia
(Trump wasn't under investigation. That headline was a narrative bomb.)
archive.is/XyvWl

The following articles contained and/or were informed by leaks of classified information and were published in the six months prior to that May 3 hearing. Comey specifically cited leaks to media being a problem in the time frame that the following articles were pushed out.

Comey: "leaks are always a problem, but especially in the last three to six months."

U.S. Officials: Putin Personally Involved in U.S. Election Hack (Genetic Christmas investigation)
cnbc.com/2016/12/14/us-…

Four Burning Questions On Russia (original title)
(Echos Fate investigation)
archive.is/IFfZl

Four other articles are listed in the Echos Fate memo. That investigation was upgraded to a Full Investigation just 7 days after Comey's testimony.

FBI obtained FISA warrant to monitor former Trump adviser Carter Page
(Foggy Falls investigation)
archive.is/ebiGe

The Foggy Falls investigation became a Full Investigation on May 10, 2017 as well.

New details emerge about 2014 Russian hack of the State Department: It was ‘hand to hand combat’
archive.is/b5TJv (Arctic Haze Investigation)

Comey Tried to Shield the F.B.I. From Politics. Then
He Shaped an Election.
(Daniel Richman is a NAMED, not anonymous, source for this article, Arctic Haze investigation.)
archive.is/wkkG9

Comey Asks Justice Dept. to Reject Trump’s Wiretapping Claim
(Baker and Rybicki; Tropic Vortex)
archive.is/3ndvc

You can read the declassified memos from the media leak investigations here
judiciary.house.gov/sites/evo-subs…

That's the end of this thread. I'll start a new later one for the filings about disclosure of grand jury material and a bill of particulars.