(WASHINGTON) -- After a two-month investigation, federal prosecutors in Virginia were unable to gather sufficient evidence to support bringing criminal charges against former FBI Director James Comey for allegedly lying to Congress, sources tell ABC News.
The prosecutors earlier this week summarized their findings -- that probable cause does not exist to secure an indictment, let alone a conviction at trial -- in a detailed declination memo for Lindsey Halligan, President Donald Trump's newly appointed U.S. attorney for the Eastern District of Virginia, sources said.
Nevertheless, sources say Halligan plans to ask a grand jury in the coming days to indict Comey, escalating Trump's unprecedented directive to prosecute some of his political adversaries.
"I just want people to act, they have to act, and we want to act fast," Trump said on Saturday after directing Attorney General Pam Bondi to prosecute Comey, New York Attorney General Letitia James, and Sen. Adam Schiff.
A former insurance lawyer turned White House aide with no prosecutorial experience, Halligan has been advised by career prosecutors in the U.S. attorney's office that seeking the charges would violate DOJ policy, raise serious ethical issues, and risk being rejected by the grand jury, sources said. She plans to pursue an indictment anyway, carrying out the clear mandate she received when she was installed into the position over the weekend, sources said.
On Thursday, Trump called Comey a “bad person” but said the decision to prosecute is up to the Department of Justice.
"They're going to make a determination. I'm not making that determination. I think I'd be allowed to get involved if I want, but I don't really choose to do so," Trump told reporters in the White House Thursday, just days after imploring the Justice Department to act.
Halligan is working against the clock, with the five-year statute of limitations to prosecute Comey for allegedly making false statements expiring on Tuesday.
The rapid push for an indictment, despite the recommendation of career prosecutors, comes at a fraught time for the high-profile attorney's office, which handles a bulk of the country's national security cases. Trump's previous pick for the job, Erik Siebert, resigned last week after being pressured to bring mortgage fraud charges against James, and Trump, who said he fired Siebert, placed Halligan in the role -- overruling senior DOJ leadership -- with a clear goal of securing criminal charges against James, Schiff, and Comey.
Trump has repeatedly invoked the four criminal cases he faced after losing the 2020 election -- including charges that he mishandled national security secrets and sought to illegally overturn an election -- to justify bringing the cases against the three longtime adversaries of the president.
"Nothing is being done. What about Comey, Adam 'Shifty' Schiff, and Leticia???" Trump wrote in a social media post on Saturday evening. "We can't delay any longer, it's killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!"
The U.S. attorney's office in the Eastern District of Virginia began investigating Comey in early August following Trump's renewed call for prosecutions related to alleged Russian interference in the 2016 election, sources told ABC News.
The investigation -- which is being carried out concurrently in the Western District of Virginia and Eastern District of Pennsylvania -- directly stemmed from FBI Director Kash Patel's discovery of sensitive documents at the FBI headquarters related to the Russia probe, sources said.
They said the documents prompted investigators to examine whether Comey's testimony to Congress in September 2020, regarding Russian interference, could support charges of perjury or obstruction. Prosecutors specifically examined Comey's testimony about Hillary Clinton's alleged involvement linking Trump to Russia and whether Comey authorized leaks of anonymous information to the media.
During his testimony to the Senate Judiciary Committee on Sept. 30, 2016, Comey defended his conduct and rejected claims that the investigation was politically motivated.
"I would say in the main it was done by the book, it was appropriate, and it was essential that it be done," Comey told the senators. "Overall, I'm proud of the work. There are parts of it that are concerning, which I'm sure we'll talk about. But overall I'm proud of the work."
Ultimately, prosecutors were unable to find evidence to prove that Comey likely committed either perjury or obstruction during his testimony, sources told ABC News.
Not only would the charges fail in securing a conviction, which requires proving the allegations beyond a reasonable doubt, but they also fall short of the much lower probable cause standard for an indictment, prosecutors concluded in a memo provided to Halligan, according to sources.
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