Federal prosecutors investigating former FBI Director James Comey for allegedly making false statements to Congress determined that a central witness in their probe would prove “problematic” and likely prevent them from establishing their case to a jury, sources familiar with their findings told ABC News. 

Daniel Richman — a law professor who prosecutors allege Comey authorized to leak information to the press — told investigators that the former FBI director instructed him not to engage with the media on at least two occasions and unequivocally said Comey never authorized him to provide information to a reporter anonymously ahead of the 2016 election, the sources said. 

Comey, who was indicted last month on charges of making a false statement and obstruction related to 2020 testimony before the Senate Judiciary Committee, is due to appear in a Virginia courtroom for the first time for his arraignment Wednesday — but Justice Department officials have privately expressed that the case could quickly unravel under the scrutiny of a federal judge and defense lawyers. 

According to prosecutors who investigated the circumstances surrounding Comey’s 2020 testimony for two months, using Richman’s testimony to prove that Comey knowingly provided false statements to Congress would result in “likely insurmountable problems” for the prosecution.

Investigators detailed those conclusions in a lengthy memo last month recommending that the office not move forward in charging Comey, according to sources familiar with the memo’s contents.

Lindsey Halligan, a Trump loyalist hand-picked to replace the U.S. attorney for the Eastern District of Virginia who resisted bringing prosecutions against Trump’s political foes, still moved forward in presenting the case before a grand jury in Alexandria, Virginia, and secured two out of three counts she sought against Comey over his 2020 congressional testimony.

During grand jury proceedings, prosecutors have no obligation to present evidence favorable to a defendant — but such evidence must be handed over to the defendant before trial. 

Halligan’s deputy raised similar concerns about the case the same week the former White House aide-turned-prosecutor asked a grand jury to indict Comey, bolstering the conclusion that no single piece of evidence could demonstrate that Comey lied to Congress and warning against relying on Richman, who she described to colleagues as a hostile witness, sources said.   

Prosecutors further expressed concerns about the department’s ability to take the case to trial quickly due to problems identifying all the relevant materials that would need to be handed over to Comey’s lawyers, sources said. They also raised alarms over the potential for Comey’s defense to cite the statute of limitations for the case, which derives from testimony in 2017 and was only reinforced by Comey during his 2020 testimony in response to a question from Republican Sen. Ted Cruz. 

Comey, who is expected to plead not guilty to the charges, denies wrongdoing and has argued that he is being targeted for political reasons. His indictment came just days after Trump’s unprecedented demand that his Justice Department act “now” to bring cases against the former FBI director and others. 

“Nothing is being done. What about Comey, Adam ‘Shifty’ Schiff, and Leticia???” Trump wrote in a social media post last month, directly addressing Attorney General Pam Bondi and referring to California Sen. Adam Schiff and New York Attorney General Letitia James. “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!!!”

Halligan alleges that Comey intentionally misled Congress in 2017 and 2020 when he testified that he never authorized another person at the FBI to provide information to the media anonymously. The allegation is that Comey authorized Richman to speak to the press anonymously, contradicting his testimony. 

Trump later accused Comey of breaking the law by sharing his memos, arguing they contained classified information, though Richman later told ABC News in a statement that none of the documents had any classification markings.

When prosecutors met with Richman in September, he told them that he never served as an anonymous source for Comey or acted at Comey’s direction while he was FBI director, sources familiar with his interview told ABC News. In at least two cases when Richman asked if he should speak with the press, Comey advised him not to do so, sources said. 

Investigators who reviewed material from Comey’s emails, including his correspondence with Richman, could not identify an instance when Comey approved leaking material to a reporter anonymously, sources told ABC News.  

Richman, a longtime friend of Comey, has previously acknowledged his role as an intermediary between Comey and reporters after Comey was fired from his role as FBI director, including leaking memos written by Comey about his interactions with Trump following his termination. 

Federal prosecutors have focused their inquiry on Comey’s actions as FBI director — including the alleged leak of information about the Trump and Clinton campaigns ahead of the 2016 election — to find evidence that Comey intentionally mislead Congress.  

As ABC News previously reported, career prosecutors in the office not only determined that the vast amount of evidence they collected in their investigation would be insufficient to convince a jury to convict him at a trial, but would also fail to meet a lower standard of reaching probable cause to even bring a case.