ALEXANDRIA, Va. — Interim U.S. Attorney Lindsey Halligan might have made a crucial error in the case against former Federal Bureau of Investigation (FBI) Director James Comey, which his defense attorneys claim warrants dismissal.
During a hearing to consider Comey’s motion to dismiss the case for vindictive and selective prosecution, attorneys for the Department of Justice (DOJ) admitted that the full grand jury never saw the final version of the indictment.
The detail emerged while Judge Michael Nachmanoff pressed the government about inconsistencies in the grand jury transcript. At one point, he called Halligan, who has so far left an assistant U.S. attorney to speak for the government, to the stand.
Halligan secured the indictment on Sept. 25, just days after her appointment. She stated that only the foreperson and another grand juror were present when the final version was signed.
After the grand jury rejected one of the three original counts in the indictment, the redrafted two-count indictment was not presented to the full grand jury, prosecutors told the judge.
“There is no indictment,” Comey’s defense attorney Michael Dreeben concluded. “That’s a threshold for dismissing this case.”
Judge Nachmanoff did not make a determination on the issue but requested further briefing.
A magistrate judge suggested Monday that “profound investigative missteps” by the Department of Justice (DOJ) could provide grounds for dismissal, ordering prosecutors to turn over grand jury transcripts to the defense. Nachmanoff halted the order to give the government time to file objections.
‘Halligan Was Not A Puppet’
On the central matter of Wednesday’s hearing, Comey’s attorneys argued the president used the DOJ to prosecute a political enemy who spoke critically in the public square, alleging a pattern of “retaliation” that began around Comey’s May 2017 firing as FBI director.
Defense attorneys pointed to President Donald Trump’s Sept. 20 Truth Social post directed at Attorney General Pam Bondi, where the president questioned why “nothing is being done” about Comey and others, who he asserted were “guilty as hell.” He suggested Halligan as a replacement for former U.S. Attorney Erik Siebert, who reportedly resigned under pressure from Trump to bring charges.
“Mrs. Halligan was not a puppet,” DOJ prosecutor Nathaniel Lemons said, asserting there is no proof that anybody but her made the final decision to prosecute.
Comey’s defense asserted that public reporting indicates no career prosecutor wanted to bring the case. Lemons objected to citing newspapers and anonymous sources.
During one exchange, Nachmanoff questioned whether a “declination memo” had been written prior to the indictment, which would have outlined reasons not to go forward with prosecution. Lemons replied that the Deputy Attorney General’s office instructed him not to reveal the information at this time.
Comey faces charges for allegedly lying during his September 2020 testimony before Congress and obstructing a congressional investigation. The government alleges he authorized Columbia University law professor Daniel Richman to leak information, though he testified that he had not “authorized someone else at the FBI to be an anonymous source in news reports” regarding an investigation into Hillary Clinton.
The motion to dismiss for vindictive and selective prosecution is one of several efforts by defense attorneys to keep Comey’s case from going to trial. Defense attorneys are also challenging Halligan’s appointment, which they argue was improper.
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