President Donald Trump has personally called for the prosecution of former FBI Director James Comey, a political foe since his first term in office. But after a flurry of legal developments this week, the prosecution appears to be hanging by a thread.
The Trump administration has tested the limits of the American justice system during its first year in office, especially trying to place loyalists in powerful positions at the Justice Department, which has historically been expected to operate above political influence.
Mr. Comey's case is part of what critics say is the Justice Department's involvement in a campaign of legal retaliation against his political opponents, including Mr. Comey and New York Attorney General Letitia James. Supporters support the president's actions as fixes to the “law” they say the Biden administration and other Democrats are pursuing against Trump and his allies. The potential collapse of the case against Mr. Comey also intertwines with some longstanding Justice Department themes in the first year of Trump's new term: the administration's desire to appoint the best federal prosecutors. without US Senate approval.
Why did we write this
A central theme of President Donald Trump's return to power has been his call to bring his perceived political enemies to justice. In one of the most high-profile cases against a former FBI director, a series of government mistakes mean the case could fail.
Government charged Comey in September on one count of perjury and one count of obstruction of Congress, both related to testimony he gave to the Senate Judiciary Committee in 2020.
Mr. Comey has pleaded not guilty to both charges. But it looks like the case will never make it to the courtroom anyway.
“Everything that's happened in the last week is unusual,” said Shane Stansbury, a former federal prosecutor in New York.
What problems does the grand jury process cause?
There are several, but the most serious is that the federal prosecutor handling the case appears to have committed a gross procedural error before the grand jury.
Before bringing any criminal charges against an individual, the prosecutor must obtain an indictment from a grand jury. Confidential proceedings are intended to ensure that the government does not improperly prosecute anyone.
This process is one-way. The grand jury sees evidence and hears only testimony from witnesses called by the prosecutor. In the Comey case, however, it appears the Justice Department's chief prosecutor may have misled the grand jury.
That prosecutor is Lindsey Halligan, Interim U.S. Attorney for the Eastern District of Virginia. A former personal lawyer for Mr. Trump with no prosecutorial experience, the president handpicked her for the job after pressuring the district's former chief prosecutor, Eric Siebert, to resign—reportedly after Mr. Siebert doubted his strength cases against Mr. Comey. The U.S. Attorney's Office for the Eastern District of Virginia declined to comment for this story.
Days later, Ms. Halligan secured Mr. Comey's indictment. However, turbulent legal developments this week could doom the case.
On Monday, a county magistrate judge ordered the government to turn over grand jury materials to Mr. Comey's lawyers because of a “troubling series of profound investigative errors” by the Justice Department that “potentially undermine[s] integrity of grand jury proceedings.”
“The Court recognizes that this is an exclusive remedy,” Judge William E. Fitzpatrick added in his report. opinion. But “the prospect that government misconduct could taint the grand jury proceedings, [means the] disclosure of grand jury materials under these unique circumstances is necessary to fully protect the rights of the defendants.”
U.S. District Court Judge Michael Nachmanoff vacated the ruling at the government's request later that day and set a hearing for Wednesday. This hearing resulted in Ms. Halligan admitting that she never presented a final indictment to the full grand jury.
The jury rejected one count of the three-count indictment, according to media reports. Ms. Halligan then reportedly redrafted the indictment to remove the dismissed charge and showed it to one of the grand jury members and the panel foreman, the latter of whom signed it. This in itself is not illegal. Federal law allows an indictment to be returned only to the grand jury foreman. in accordance with Andrew McCarthy, a former assistant US attorney writing for National Review, especially when the indictment was returned late, as was the case with the Comey indictment.
“I believe there are serious problems with Comey's charges that should warrant dismissal of the indictment pending trial. I do not believe the unusual nature of the two-count indictment is one of them,” Mr. McCarthy added.
Jeffrey Cohen, a former federal prosecutor in Massachusetts, agrees that the details will determine “whether it was a harmless mistake or not.” But the mistake has serious consequences, he says.
“The important principle is that the grand jury decides on charges, not the prosecutor,” he says.
“We don't like and shouldn't like the idea that prosecutors can just charge people. There has to be a check on that power, and that check is the grand jury,” he adds.
Judge Nakhmanov said Wednesday he would not immediately make a decision on the future of the case.
In a court document filed Thursday, Ms. Halligan called the grand jury's case a “clerical inconsistency” and provided a transcript showing the foreman said the grand jury had voted on an indictment on two counts. in accordance with Associated Press.
Are there still problems with the case?
Another issue raised by Comey's lawyers concerns his claim that the case should be dismissed because the prosecution is “vindictive and selective.”
“The government chose Mr. Comey to prosecute because of his protected speech and because of President Trump's personal dislike of Mr. Comey,” the statement said. filing a lawsuit argued.
Trump has shown significant interest in the matter. In September, he publicly criticized Siebert for not yet filing charges against Comey and Ms. James.
“I want him to go away,” the president said told reporters September 19.
Three days later, Ms. Halligan was sworn in as interim United States Attorney for the Eastern District of Virginia.
Does the status of a “temporary” lawyer matter?
The designation “interim” does not constitute Ms. Halligan's appointment nor Mr. Siebert's required Senate confirmation.
Whether two “temporary” lawyers can be appointed consecutively in the US is a matter of debate, and Mr Comey also argues that his prosecution should be thrown out because Ms Halligan was appointed illegally.
He is not the first to make this argument. Across the country, defendants fought charges as cases were brought by federal prosecutors appointed temporarily or acting without Senate confirmation.
Judges in three states – Nevada, New JerseyAnd California – ruled that top federal prosecutors worked illegally.
At a hearing this month, another federal judge looked skeptical the legality of Ms Halligan's appointment. U.S. District Judge Cameron McGowan Curry said she hopes to issue a ruling by Thanksgiving.
It is unclear what will happen first—the grand jury ruling before Judge Nachmanov or the illegal assignment ruling before Judge Curry—but there is no doubt that the Justice Department's prosecution of Mr. Comey is on thin ice.
Typically, a judge may give the Justice Department the opportunity to appear before a grand jury again. That may not be possible here, experts say. The statute of limitations on the charges against Mr. Comey expired on Sept. 30, eight days after Ms. Halligan was appointed.
“It just seems like it was a rush job. It doesn't seem like the government had the opportunity to act more carefully,” said Professor Stansbury, who teaches at Duke Law School.
