Lawfare Analysis Reveals Critical Flaws in Comey Indictment Over FBI Affiliation

A recent analysis by Lawfare has uncovered significant vulnerabilities in the criminal indictment against former FBI Director James Comey, specifically challenging the prosecution's assertion regarding the employment status of a key figure, Daniel Richman. The article, published on November 7, 2025, meticulously details how Richman's official affiliation with the FBI was either expired or terminated during the periods of alleged unauthorized communications, potentially undermining the government's case. This development adds a new layer of complexity to the high-profile legal proceedings.

The indictment charges Comey with obstructing justice and lying to Congress during his 2020 testimony. Prosecutors allege Comey falsely denied authorizing someone "at the FBI" to serve as an anonymous source in news reports concerning the Bureau's investigation into Hillary Clinton. Daniel Richman, a Columbia University law professor and a long-time confidant of Comey, has been identified by the government as "PERSON 3," the individual allegedly authorized by Comey.

Lawfare's investigation, based on publicly available agency records, reveals that Richman's initial one-year term as a special government employee at the FBI expired on June 30, 2016. While a reappointment request was approved in December 2016, Richman reportedly never signed the necessary acknowledgement form, and he resigned from the Bureau on February 7, 2017. Crucially, all communications cited by the prosecution as evidence occurred either after his initial term lapsed and before any valid reappointment, or after his resignation.

This timeline suggests Richman was not technically an employee "at the FBI" during the critical periods in question, a fact that could be pivotal for Comey's defense. The ambiguity of the phrase "at the FBI" is a contested issue, with Comey's defense arguing it should refer only to full-time employees. A magistrate judge, William Fitzpatrick, previously criticized the prosecution's "indict first, investigate second" approach during a November 5 hearing, warning of potential procedural and substantive challenges.

The Lawfare article highlights that if Richman was not formally "at the FBI" as the prosecution claims, the foundation of the government's case against Comey, particularly the false statements charge, could collapse. This detailed legal scrutiny underscores the importance of technicalities in criminal indictments and raises questions about the prosecution's thoroughness in establishing factual grounds.