Former FBI Director James Comey testifies to the Senate Intelligence Committee on Capitol Hill on June 8, 2017, in Washington, D.C. (Brendan Smialowski/AFP via Getty Images)
The second is there could be internal resistance from career federal prosecutors, who may refuse to present the case.
ABC News reported Wednesday that a group of prosecutors gave acting U.S. Attorney Lindsey Halligan — a former defense lawyer for President Donald Trump who was installed last week as acting head of the Eastern District of Virginia — a "detailed memo" recommending she decline to bring perjury and obstruction charges against Comey.
They noted that a months-long investigation into Comey’s remarks, launched earlier this year, failed to establish probable cause for a crime.
They also reportedly reminded Halligan that DOJ guidelines generally bar prosecutors from filing charges unless they can show the individual is "more likely than not to be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal."
Halligan, however, is free to override their concerns — despite any internal pushback the decision might cause.
Beyond that, prosecutors must also establish probable cause for perjury charges.
Perjury is a "very difficult crime for DOJ to prove," John Fishwick, the former U.S. attorney for the Western District of Virginia, told Fox News Digital.
That’s largely because prosecutors must not only prove the statement was false, but also that the defendant knew it was false at the time, Fishwick said. "Because of the difficulty of proof, it is not often pursued."
The probe into Comey, for now, focuses on his testimony before the Senate Judiciary Committee during a Sept. 30, 2020, hearing on the FBI’s handling of the so-called "Crossfire Hurricane" probe, which examined Trump-Russia allegations.
That investigation found no coordination and has itself been reviewed twice by the Justice Department.
Former FBI Director James Comey testifies before a Senate Intelligence Committee hearing on Russia’s alleged interference in the 2016 U.S. election, June 8, 2017. (Jim Bourg/Reuters)
The looming indictment, which could come as early as Thursday, is the latest chapter in the years-long dispute between Trump and Comey, whom Trump fired in 2017, about five years into his 10-year term.
Comey, for his part, accused Trump shortly after leaving the FBI of demanding a "loyalty pledge" from him, which he said he refused.
He has remained an outspoken Trump critic and used a portion of his memoir, "A Higher Loyalty," to take aim at the former president.
CLICK HERE TO GET THE FOX NEWS APP
Trump has continued to assail Comey and scrutinize his tenure at the FBI.
Fox News reported earlier this year that the FBI launched criminal investigations into Comey and former CIA Director John Brennan for allegedly making false statements to Congress.
Breanne Deppisch is a national politics reporter for Fox News Digital covering the Trump administration, with a focus on the Justice Department, FBI, and other national news.
https://www.foxnews.com/politics/trying-secure-comey-indictment-us-prosecutors-have-short-window-difficult-case-make