Federal prosecutors on Wednesday said they had never presented the final version of the indictment filed against James Comey to a full federal grand jury, a concession that adds to mounting challenges in their effort to prosecute the former FBI director.
Prosecutors acknowledged the omission during a Wednesday hearing in which Comey’s lawyers argued the case against him should be dismissed because it was a selective and vindictive prosecution.
Comey was indicted on 26 September on one count of making a false statement to Congress and one count of obstructing a congressional proceeding in connection with testimony he gave in 2020 in which he said he had not “authorized someone else at the FBI to be an anonymous source in news reports” regarding Hillary Clinton.
Court documents from September show that Lindsey Halligan, a Trump ally installed as a top prosecutor in the case, had sought an additional false statement charge against Comey, but that grand jurors had rejected it.
Once the grand jury rejected the charge, Halligan could have had the full grand jury vote again on a copy of the indictment that only included the two charges they voted to indict on, or presented the judge with a three-count indictment crossing out the count on which the grand jury had chosen not to indict on. But, pressed on Wednesday by Michael Nachmanoff, the US district judge overseeing the case, Halligan confirmed that only the foreperson and another grand juror had seen the revised indictment that had only the two charges the grand jury had voted to indict on, CNN and Lawfare reported on Wednesday.
Comey’s team therefore views the indictment as null. “There is no indictment Mr Comey is facing,” Michael Dreeben, one of Comey’s lawyers said in court on Wednesday. N Tyler Lemons, an assistant US attorney handling the case, argued that there wasn’t a problem because the final version of the indictment merely removed a charge rejected by the grand jury. “The new indictment wasn’t a new indictment,” he said, according to the Washington Post.
Andrew Tessman, a former federal prosecutor in West Virginia and Washington DC, said he saw the issue as “highly problematic” and a “fatal flaw”. “This is just not how grand jury operates,” he said.
Halligan is a former insurance lawyer who presented the case to the grand jury herself despite never having previously handled a criminal case.
A transcript of the hearing in which the indictment was returned in Comey’s case obtained by CBS News shows some confusion over the indictment. The magistrate judge overseeing it said she had been given two versions of the indictment.
“The reason we want to cross all of our T’s and dot all of our I’s in these situations is because the court is also going to take it very seriously for the same reasons. And if you screw up one step in this process, then you’re risking the whole case going away in an embarrassing fashion,” Tessman said. “The US attorney’s office is going to take this whole process very seriously, but the court is going to take it even more seriously. And if they see one thing wrong with how the case was presented to the grand jury, they’re going to err on the side of protecting people’s constitutional rights.”
“It’s understandable. You pulled a random insurance lawyer off the street and you put her into the grand jury with no training and no other experienced attorney there,” he added. “It’s not surprising at all that some big mistake was made.”
Nachmanoff gave the justice department until 5pm on Wednesday to further explain what happened.
Before Trump installed Halligan, it was widely reported that career prosecutors believed there was not sufficient evidence to charge Comey with a crime. On Wednesday, Lemons said the deputy attorney general’s office had instructed him not to disclose whether a memo outlining the reasons for not prosecuting the case existed.
Wednesday’s hearing came days after a magistrate judge handling the case said there may have been “government misconduct” and that Halligan made at least two “fundamental and highly prejudicial” misstatements of law to the grand jury. The magistrate judge ordered the prosecutors to take the highly unusual step of turning over grand jury materials to Comey’s team. That order is on hold while an appeal is pending.
