Comey Indictment Flaw: Full Grand Jury Never Saw Final Charges

In a stunning admission on Wednesday, federal prosecutors acknowledged they failed to present the complete and final version of the indictment against former FBI Director James Comey to the entire federal grand jury. This critical concession significantly escalates the legal hurdles in their ongoing pursuit of charges against him, adding a new layer of complexity to an already contentious case.

The prosecutors’ admission of this oversight came during a Wednesday court hearing. Comey’s legal team had sought to have the entire case dismissed, arguing vehemently that the charges against their client constituted a “selective and vindictive prosecution.” The revelation regarding the grand jury procedure now provides them with a powerful new avenue for challenging the legitimacy of the indictment itself.

The Charges Against Comey

James Comey was formally indicted on September 26, facing two serious counts. The charges include one count of making a false statement to Congress and another for obstructing a congressional proceeding. These allegations stem from testimony he provided in 2020, during which he stated under oath that he had not “authorized someone else at the FBI to be an anonymous source in news reports” concerning Hillary Clinton. The prosecution alleges this statement was untruthful.

Court documents released in September illuminated a key aspect of the prosecution’s internal dynamics. Lindsey Halligan, a prosecutor with reported ties to former President Trump who was appointed to a senior role in the case, had initially pushed for an additional false statement charge against Comey. However, this third proposed count was explicitly rejected by the grand jurors, indicating a lack of consensus on that specific charge.

A Procedural Lapse Uncovered

Following the grand jury’s rejection of the third charge, standard procedure dictates that Halligan had several options. She could have presented the full grand jury with a revised indictment containing only the two charges they had voted to approve, allowing them to formally vote on that document. Alternatively, she could have submitted a three-count indictment to the judge, with the rejected charge clearly marked as crossed out.

However, during Wednesday’s proceedings, U.S. District Judge Michael Nachmanoff, who is overseeing the high-profile case, directly questioned Halligan about the process. Pressed by the judge, Halligan confirmed a critical deviation: only the grand jury’s foreperson and one other grand juror had actually reviewed the revised indictment, which contained solely the two charges the grand jury had previously voted to indict upon. This detail was independently reported by CNN and Lawfare on Wednesday, highlighting the unusual nature of the process.

Defense Argues Indictment is Null

This procedural misstep has led Comey’s defense team to conclude that the entire indictment is fundamentally flawed and therefore invalid. Michael Dreeben, one of Comey’s attorneys, articulated this position forcefully in court. “There is no indictment Mr Comey is facing,” Dreeben declared, suggesting that without proper grand jury review of the final document, the legal basis for the prosecution has collapsed.

Conversely, N. Tyler Lemons, an assistant U.S. attorney handling the case, attempted to downplay the significance of the oversight. Lemons argued that the final version of the indictment merely removed a charge that the grand jury had already rejected, implying that this modification did not constitute a “new indictment” requiring a full grand jury vote. This argument, however, faces significant scrutiny given the strict procedural requirements governing grand jury indictments.

The admission by prosecutors introduces substantial uncertainty into the future of the case against the former FBI director. It remains to be seen how Judge Nachmanoff will rule on the defense’s motion to dismiss, but the revelation undeniably presents a formidable new challenge for the prosecution as they seek to move forward.

Source: The Guardian