Dem
47
GOP
53
The case against former FBI Director James Comey is evaporating rapidly, along with any remaining shreds of credibility that "U.S. Attorney" Lindsey Halligan may have. At a hearing on Wednesday on Comey's motion to dismiss the case based on vindictive and selective prosecution, Halligan admitted that she never presented the final indictment to the entire grand jury that indicted him. Apparently, at that stunning admission, there were audible gasps from those seated in the packed courtroom. Comey's lawyer called for an immediate dismissal of the case, arguing that there was no valid indictment and the statute of limitations has now passed.
Then, late Thursday, the Department of Justice filed a "notice correcting the record," in which it now claims that the grand jury DID see the final indictment. The filing includes an exchange between the magistrate judge who oversaw the return of the indictment and the foreperson of the grand jury. The magistrate judge was trying to clarify which indictment is the final one, because she was given both the three-count indictment and the two-count indictment. The foreperson says: "It was the very first count that we did not agree on, and the Count Two and Three were then put in a different package, which we agreed on." The court then confirms, "So you voted on the one that has the two counts?" To which the foreperson responds, "Yes." Given that exchange, it's really puzzling why Halligan and Assistant U.S. Attorney Tyler Lemons said exactly the opposite in court on Wednesday. But read on.
The other revelation from Wednesday's hearing is that the prosecutor refused to confirm the existence of a declination memo, which is a memo the prosecutor's office submits outlining the reasons they have declined to prosecute someone. It was widely reported that such a memo was produced when Erik Siebert was the U.S. Attorney of the Eastern District of Virginia, and Judge Michael Nachmanoff has previously ordered that it be turned over to the defense. Now, the prosecutor is saying they may have objections to producing it, if it even exists. The judge was clearly exasperated but didn't issue a ruling from the bench. He took everything under advisement and is expected to rule soon.
This saga actually began earlier this week. Magistrate Judge William Fitzpatrick was assigned to deal with the government's request to use evidence that was seized in 2019 from Comey's friend and former attorney, Daniel Richman, as part of an investigation called "Arctic Haze." Magistrate judges work with federal district court judges to handle discrete portions of the case, so as to relieve the presiding judge of some of the workload. Fitzpatrick was assigned the task of determining how to handle potentially privileged information, such as attorney-client communications, that was part of the materials seized, and that the DoJ wants to use as part of its case against Comey. The government asked the Court if it could use what's called a filter team to review the material and remove any privileged communications. Comey argued, in response, that the motion was too little too late: A filter team is useless now because the government already accessed privileged information and used it improperly in its presentation to the grand jury. Comey then filed a motion arguing that to prove his allegation and successfully oppose the government's motion, he needed to see all of the grand jury testimony. Naturally, the government objected vociferously, so the magistrate judge ordered the grand jury materials to be submitted only to him so he could determine if they should be handed over to Comey and his team.
This is probably when Halligan started sweating. Recall that she presented this case to the grand jury alone. Everyone else in the office refused to have anything to do with this charade. (It was only later that she managed to recruit a couple of flunkies from the North Carolina office to assist her.) Also recall that she has never prosecuted a criminal case, let alone a federal criminal case, and has never appeared before a grand jury. In a grand jury proceeding, the prosecutor holds all the cards: No one appears for the defense and there is no judge presiding over the proceedings. If you're an experienced prosecutor, that kind of control is a huge advantage. When you have no idea what you're doing, you're on a tightrope high above the center ring working without a net. There is no one to object and nothing to catch you when you fall. And Halligan really needs a net.
At the conclusion of the judge's review, Fitzpatrick ordered the DoJ to turn over the grand jury materials to Comey. Halligan could have just left it there and complied. Instead, she complained to Nachmanoff that Fitzpatrick didn't provide any specific reasons why Comey should have access to this secret material. That's when the fun started because Fitzpatrick was more than happy to provide reasons in a 25-page order.
To start, he acknowledged the importance of grand jury secrecy and that there is a high bar to clear before transcripts and other materials can be disclosed. And then he went on to document the stunning improprieties he discovered that warrant the disclosure. The first problem is that in executing the search warrant in 2019, officials took more materials than were covered under the search warrant—many of those documents related to Comey and his attorney-client relationship with Richman. This is a Fourth Amendment violation and the Court was not amused: "This cavalier attitude towards a basic tenet of the Fourth Amendment and multiple court orders left the government unchecked to rummage through all of the information seized from Mr. Richman, and apparently, in the government's eyes, to do so again anytime they chose. The Arctic Haze investigation was closed in September 2021, with no charges filed. The Richman materials sat dormant with the FBI until the summer of 2025, when the Bureau chose to rummage through them again." It was this rummaging that led to the second problem: using materials that were unlawfully seized and privileged to secure an indictment. "The government's decision to allow an agent who was exposed to potentially privileged information to testify before a grand jury is highly irregular and a radical departure from past DoJ practice."
The third problem is Halligan's misrepresentations to the grand jury. The Court identified two statements that misled them on the law: (1) She implied that Comey did not have a Fifth Amendment right not to testify to the grand jury and that they could hold his failure to testify against him and (2) she told the grand jury that they didn't have to rely only on the evidence presented to them to establish probable cause, and that they "could be assured the government had more evidence—perhaps better evidence—that would be presented at trial." (A point of personal privilege: (L) really wishes she could tell a jury, "Hey, if you don't like this evidence, I have much better evidence hidden behind door Number 3—Trust me!")
And then Fitzpatrick noted that there were hours missing from the proceedings and a question of whether the final indictment was presented to the grand jury. Again, the issue is that the initial indictment presented to the grand jury contained three charges. The grand jury rejected one of those charges but found probable cause on the other two. At that point, the protocol is to prepare a new indictment with those two charges, present that to the grand jury to confirm their decision, and then return that to the judge. The grand jury began its deliberation regarding the initial three-count indictment at 4:28 p.m. That's where the transcript stops. The two-count indictment was presented to the magistrate judge at 6:47 p.m. What happened in that time span?
Now, we have at least part of the answer to that question: Halligan never presented the two-count indictment to the entire grand jury. Nachmanoff now has to decide how to proceed: He could grant one of Comey's motions to dismiss; he could wait for the outcome of the motion to dismiss based on Halligan's unlawful appointment, which was heard in Senior U.S. District Judge Cameron Currie's courtroom last week (she's expected to rule early next week); or he could toss the whole thing based on misconduct to the grand jury. Whatever he decides, odds are it will be yet another black eye for the DoJ. At the very least, Halligan's law license is in serious jeopardy. (L)
We're going to end here for today, because we're already at 5,500 words, and yesterday's disaster threw a lot of things out of whack. Normal order will resume next week.