Comey case faces questions about grand jury process

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ALEXANDRIA, Virginia. The prosecution of former FBI Director James Comey hit another hurdle Wednesday as the Justice Department faced growing questions about how the case was presented to a grand jury for an indictment.

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This development threatened to further threaten the politically motivated prosecution, which was already subject to numerous challenges and demands for its termination. It came during a hearing in which Comey's lawyers asked U.S. District Judge Michael Nachmanov to dismiss the case on the grounds that the government was being vindictive and as a separate lawsuit by Lindsey Halligan, the hastily appointed and inexperienced prosecutor who secured the indictment, was pending.

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The Justice Department's admission under questioning by a judge that the full grand jury did not review a copy of the final indictment is the latest evidence of its seemingly disjointed criminal investigation into one of President Donald Trump's political enemies. Comey was fired by Trump in May 2017 while overseeing the FBI's investigation into potential ties between Russia and the Trump 2016 campaign. Since then, the two have been at odds publicly, with Trump ridiculing Comey, calling him a “weak, lying little ball of slime” and calling for his prosecution.

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Concerns about the trial came into focus earlier this week when another judge in the case raised questions with the grand jury about what he said were “serious investigative errors,” including misrepresentations of the law. The Justice Department denies the trial was tainted by irregularities.

A tale of two accusations

Halligan initially asked the grand jury to return a three-count indictment against Comey. But after a grand jury rejected one of the proposed charges, the Justice Department subsequently secured a second two-count indictment accusing Comey of making a false statement and obstructing Congress. Comey has pleaded not guilty and denied any wrongdoing.

In a strongly worded ruling Monday, U.S. Magistrate Judge William Fitzpatrick, who is also handling parts of the case, said that after reviewing the grand jury transcripts, he had questions about whether the en banc grand jury had considered the final two-count indictment that was returned.

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Nachmanoff, the trial judge, pressed the Justice Department about Fitzpatrick's concerns during a hearing Wednesday that largely focused on Comey's retaliation arguments. After a private conversation with Halligan, Tyler Lemons, one of the prosecutors, acknowledged that the revised indictment was not shown to all jurors.

“I wasn’t there, but that’s what I understand, your honor,” Lemons said.

Nakhmanov called Halligan to the pulpit and asked her who was present when the final indictment was presented to the magistrate. She said there were only two grand jurors, including the foreman.

Comey's lawyer, Michael Dreeben, cited the government's failure to present a final indictment to the full grand jury as grounds for dismissing the case. He also argued that the statute of limitations on the charges had expired without a valid indictment being filed.

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“This would be tantamount to an injunction against further prosecution in this case,” Driben said.

Nakhmanov did not make an immediate decision, saying that “the issues are too weighty and complex” for the panel to decide.

The Justice Department rejected the significance of that revelation in two documents filed late Wednesday, saying the two charges in the final indictment were identical to the two counts approved by the grand jury when it was presented with the proposed indictment.

“Given that the grand jury was presented with two counts on which it voted to return an indictment, and in fact voted on those counts,” prosecutors said, the case should not be dismissed.

Claims of retaliation

Dreeben separately argued that the prosecution was unduly vindictive and based on Trump's desire for retribution and the circumstances warranted dismissal.

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“The President's use of the Justice Department to bring criminal charges against a vocal and well-known critic in order to punish and deter those who would oppose him violates the Constitution,” Dreeben said.

While vindictive motions are not often successful, Comey's lawyers have compiled a laundry list of verbal attacks from Trump in hopes of proving the case is the result of the president's personal grudges.

Trump stepped up his long-standing demands to prosecute Comey with a September social media post in which he complained to Attorney General Pam Bondi about the lack of action against his political opponents. “We cannot delay any longer, this is killing our reputation,” Trump wrote, adding that “JUSTICE MUST BE DONE NOW!!!”

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“If that’s not an indication for prosecution,” Dreeben said in court, “I’d really be hard-pressed to say what is.”

The night after the post was published, Trump said he would appoint Halligan, a White House aide with no prior prosecutorial experience, as U.S. attorney for the Eastern District of Virginia on an interim basis. She replaces a veteran prosecutor who was effectively forced out of office after failing to indict Comey or another Trump foe, New York Attorney General Letitia James.

Halligan secured Comey's indictment days later as the statute of limitations in the case was running out. The charges stem from sworn testimony about whether Comey allowed an FBI colleague to act as an anonymous source for the media.

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When asked by Nakhmanov whether he considered Halligan a “stalk horse” or a “puppet” of the administration, Dreeben demurred and opposed that characterization. But, he said, “she did what she was told.”

Presidents, Driben said, have other tools to punish critics, but using the full weight of the Justice Department is unacceptable.

“The government cannot use the power of criminal prosecution to try to silence a critic in violation of the First Amendment,” he said.

Lemons, the Justice Department prosecutor, insisted that Comey was indicted by a “properly constituted” grand jury because he broke the law, not because Trump ordered it.

“The defendant is not on trial for any remarks about the president,” Lemons said.

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Lemons said no one directed Halligan to pursue Comey or seek charges against him.

“It was her decision and her decision alone,” he added.

But Nachmanoff noted that Trump nominated Halligan just days before she presented Comey's case to the grand jury.

“What independent assessment could she make for that period of time?” he asked Lemons.

Nachmanoff asked Lemons if he had seen the “no memo” in which prosecutors laid out their reasons for not charging Comey. Lemons said the department instructed him not to disclose this “confidential” information.

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