Judge questions government over apparent flaws in Comey indictment

Lindsey Halligan, President Donald Trump’s hand-picked federal prosecutor who brought charges against former FBI Director James Comey, told a judge Wednesday that the entire grand jury that indicted Comey did not see the final indictment; only the foreman and another grand jury saw it.

Halligan’s testimony came at a hearing Monday in which Comey is seeking to have the indictment dismissed on the grounds that it is the product of a vindictive process.

Halligan told U.S. District Judge Michael Nachmanoff that the full grand jury saw the original indictment that was returned, but that the charges against Comey currently on the court docket were not reviewed by the full grand jury, even though they reflected the full grand jury vote on the previously rejected indictment.

Comey’s attorney, Michael Dreeben, argued that the grand jury indictment issue clearly required Judge Nachmanoff to dismiss the case.

A Justice Department lawyer also declined to answer whether a memo prepared by career prosecutors in the U.S. attorney’s office before Halligan’s appointment recommended against bringing charges against Comey.

Halligan sought impeachment of Comey after Trump forced out Former US Attorney Erik Siebert, who sources said had resisted bringing cases against Comey and New York Attorney General Letitia James. Halligan, who had no experience as a prosecutor, requested the impeachment after Trump, in a social media post, asked Attorney General Pam Bondi to act “NOW!!!” to prosecute Comey, James and Representative Adam Schiff.

Comey pleaded not guilty in October to one count of false statements and one count of obstruction of a congressional proceeding related to his testimony before the Senate Judiciary Committee in 2020, amid what critics call Trump payback campaign against his supposed political enemies. Vice President JD Vance has said that such prosecutions are “driven by law and not politics.”

Comey’s lawyers argued Wednesday that Trump’s social media post indicated he was using the justice system as a “club to harm and intimidate his political opponents.”

“It’s effectively an admission that this is a political process,” said Comey’s lawyer, Michael Dreeben. “The president is underlining what he wants done here.”

Dreeben argued that by replacing the prosecutor who ran the US attorney’s office in Virginia with his former employee and lawyer, Trump was “manipulating the prosecutorial machinery” and committing an “egregious violation of fundamental constitutional values.”

“This has to stop,” Dreeben said of Trump’s social media posts directed at Comey, arguing that “a message needs to be sent to the executive branch.”

Judge Nachmanoff pressed Justice Department attorney Tyler Lemons about the existence of a memo recommending against filing charges, asking, “Was there a declination memo?”

“I don’t know what documents exist,” Lemons initially said, to which the judge asked, “Didn’t you try to find out if there was a declination note?”

Lemons ultimately told the court that he tried to find out if a rejection memo existed, but said he had instructions from Deputy Attorney General Todd Blanche’s office not to reveal the response.

“What did the deputy attorney general tell you that you can’t say?” Nachmanoff asked, to which Lemons only said that he was aware of several draft memos.

Comey’s lawyers have argued that prosecutors are engaging in an act of political retaliation at the behest of President Trump, who they say “expressly sought charges regardless of the facts” to punish Comey for his outspoken criticism of the president.

“Fundamental principles of due process and equal protection have long ensured that government officials cannot use the courts to punish and imprison those they perceive as personal and political enemies. But that is exactly what happened here,” Comey’s lawyers argued in court papers.

Amid an ongoing investigation into Russian meddling in the 2016 election, Trump abruptly fired Comey in 2017 and has repeatedly called for him to be criminally charged.

“The objective evidence establishes that President Trump directed the prosecution of Mr. Comey in retaliation for Mr. Comey’s public criticism and to punish Mr. Comey out of personal grudge,” Comey’s lawyers argued, saying the case should be dismissed because Trump has “genuine animus” toward the former FBI director, and the case itself likely would not have been brought without the president’s own intervention.

“When no career prosecutor followed those orders, the president publicly forced the acting U.S. attorney to resign and ordered the attorney general to bring ‘justice’ against Mr. Comey,” Comey’s lawyers argued.

The two-count indictment against Comey claims he lied to Congress when he testified that he never authorized other FBI officials to leak information to the press, even though he allegedly directed a Columbia University professor to pass information to a New York Times reporter. Comey has pleaded not guilty to the charges and denies ever authorizing anyone at the FBI to leak information on his behalf.

Prosecutors argue that Comey’s motion falls short of the high legal standard for proving vindictive prosecution, arguing that it cannot prove that the case was brought “solely to punish him” for his criticism of the president. Highlighting Comey’s role leading the FBI, prosecutors argued that making false statements “implies social interests of the highest order.”

“The Executive cannot be expected to ignore agency heads who lie about official actions simply because they later become outspoken critics,” prosecutors argued.

Prosecutors have also argued that Halligan, who took the unusual step of single-handedly presenting Comey’s indictment to a grand jury, has no animosity toward Comey, even if the president does.

Prosecutors also rejected the claim that Trump’s social media posts prove prosecutors are vindictive; Instead, they argue that Trump’s social media posts alleging Comey committed crimes create “a years-long record of legitimate reasons” to bring a case against the former FBI director.

“The defendant primarily cites the president’s social media posts. These posts reflect the president’s view that the defendant has committed crimes that should be prosecuted. They may even suggest that the president does not favor the defendant. But they are not direct evidence of a vindictive motive,” prosecutors wrote.

Wednesday’s hearing came as Halligan’s actions are drawing scrutiny from a judge who expressed alarm that a “disturbing pattern of profound investigative errors” may have irreparably damaged the case. In a scathing ruling Monday, Judge William Fitzpatrick said he identified at least two instances in which Halligan made “fundamental errors of law” during his presentation to the grand jury, as well as expressing concerns that Comey’s indictment was not fully presented to the grand jury.

“If this proceeding was not carried out, then the Court is in uncharted legal territory in that the indictment presented in open court was not the same indictment document presented and deliberated upon by the grand jury,” Fitzpatrick said.

Fitzpatrick ordered prosecutors to turn over audio recordings of the grand jury proceedings to defense attorneys, although U.S. District Judge Michael Nachmanoff delayed that decision to hear prosecutors’ objections.

Currently, Comey will go to trial on January 5.