Barbara McQuade

So instead, you're stuck with what Ted Cruz says.

Yeah, it's an interesting concept.

So a variance is a legal term of art, and that is you charge one crime, but you proved another.

And that is fatal to an indictment.

So, for example, say I charged you, Tanya, with robbing a bank, the First Bank of America, on July 1st.

But at trial, the evidence I prove is that you robbed the Second Bank of America on August 1st.

I may have proved out a crime, but it's not that crime.

And that would be a variance from the indictment in violation of your due process rights, because a defendant is entitled to fair notice of that with which he is charged so that he can mount a defense and share an alibi if he can say I was somewhere else on August 1st of this year.

And so for that reason, a false statement pertaining to the Clinton administration is different from a false statement pertaining to the Clinton investigation.

That's about the email server, not about the Clinton administration.

And in addition, there is some argument that it isn't about either of those things, but it's about the Clinton Foundation.

And that was what they were investigating.

So

They have to have a solid theory of prosecution.

They have to provide Jim Comey with notice of that.

To date, they haven't really done that.

But as you say, maybe Comey just wants to strategically say, let's have a trial.

I'm ready.

I want to assert my right to a speedy trial.

I have a right to a trial within 70 days.