Trump loyalist admits grand jury never saw final Comey indictment

ALEXANDRIA, Virginia – A federal judge put the prosecutors pursuing charges against James Comey, the former Federal Bureau of Investigation director, through the wringer on Nov 19, interrogating them with a series of questions that underscored irregularities in the case, including that the full grand jury did not see the indictment it was supposed to have approved.

The grilling by Judge Michael S. Nachmanoff took place at an excruciatingly awkward hearing in US District Court in Alexandria, Virginia, that was nominally held to consider the narrow issue of whether the charges against Comey had been filed as an act of vindictive retribution by President Donald Trump.

But Judge Nachmanoff peppered prosecutors with questions on a range of topics, including Mr Trump’s own statements about wanting Comey to be indicted and an earlier decision by career members of the US attorney’s office in Alexandria to forgo bringing charges.

In one remarkable moment, the judge posed some of his questions directly to Ms Lindsey Halligan, the US attorney handpicked by Mr Trump to bring the case, quizzing her on how she had presented it to the grand jury.

Just this week, that subject led another judge involved in the case to suggest that she may have engaged in prosecutorial misconduct.

Judge Nachmanoff’s inquiries were extraordinary by almost any measure. But the answers prosecutors gave him in return were even more so.

At one point, Ms Halligan admitted that she had never shown the second – and final – version of the Comey indictment to the full grand jury before the foreperson signed the charging document.

Comey’s lawyers immediately seized on that irregularity, calling it another reason to dismiss the case entirely.

At another point, one of Ms Halligan’s subordinates, Mr Tyler Lemons, acknowledged that someone in the deputy attorney general’s office had instructed him not to discuss in open court whether his predecessors had – or had not – written a memo laying out their reasons for not bringing charges, because that was privileged information.

In the end, Mr Lemons, appearing unnerved under questioning, confessed that the prosecutors who had previously handled the case had indeed written a draft of a memo declining prosecution.

The spectacle, which played out over nearly 90 minutes of tense courtroom colloquy, drove home just how slapdash the prosecution of Comey appeared to have been from its inception.

Judge Nachmanoff declined to issue a ruling from the bench on Comey’s claims that the case was brought vindictively.

But he appeared to be leaning in that direction. Given the other revelations of the day, he could now have more reasons to throw out the charges.

The most surprising development might have been the government’s admission, first delivered by Mr Lemons, that Ms Halligan had never showed the revised indictment in the case – the one that was ultimately used to charge Comey – to all the grand jurors.

Grand jurors have to vote on indictments to approve them, but Mr Lemons told the judge that only the foreperson formally approved the second charging document, a move that could in theory cripple the case.

When Ms Halligan first went into the grand jury, she had initially sought a three-count indictment against Comey.

And after the grand jurors rejected one of the charges, she did not re-present the case with only two counts, but simply had the original indictment redrafted to reflect the failure of a third.

Judge Nachmanoff seemed stunned by the events and asked Ms Halligan to stand up in court to answer questions. He asked her whether the entire grand jury had the opportunity to see the second indictment.

She told him it had not. He thanked her and told her to sit down.

The government’s team consisted of Ms Halligan, a former White House aide and personal lawyer to Mr Trump who is working on the first criminal case of her career.

She was accompanied by Mr Lemons and another assistant US attorney, Mr Gabriel Diaz, both of whom have experience with criminal proceedings but were brought in from a US attorney’s office in North Carolina after no one in the Alexandria office would take the job.

Speaking for Comey, by contrast, was Mr Michael R. Dreeben, a former deputy solicitor general who has argued more than 100 cases in front of the Supreme Court.

Mr Dreeben got right to the point, telling Judge Nachmanoff that the charges should be thrown out as a violation of the First Amendment and due process rights, because Mr Trump had used the Justice Department to “punish and deter those who would speak out against him”.

“This is an extraordinary case, and it merits an extraordinary remedy,” Mr Dreeben said. “The President of the United States caused the executive branch to prosecute a perceived political enemy.”

He urged Mr Nachmanoff to put an end to what he described as the White House’s abuse of the criminal justice system.

“This has to stop,” he told the judge. “This court is the first to confront the issue of whether a message needs to be sent to the executive branch.”

At the heart of Mr Dreeben’s presentation was the story of how Mr Trump strong-armed top Justice Department officials into charging Comey over a weekend in September.

The President, in an angry social media post, ordered his attorney-general Pam Bondi to prosecute Comey, his long-time foe.

Those demands came shortly after Mr Trump ousted Mr Erik S. Siebert, the US attorney for the Eastern District of Virginia, who had refused to indict Comey, and just before he chose the inexperienced loyalist, Ms Halligan, as his replacement.

Within four days of taking the post, Ms Halligan presented the charges to the grand jury – by herself and for her very first time – and came out with an indictment.

Comey was accused of lying to and obstructing Congress during testimony before the Senate Judiciary Committee in September 2020.

At the hearing, he was asked about whether he had authorised anyone at the FBI to serve as an anonymous source in newspaper articles about sensitive political investigations.

Motions for vindictive prosecution are generally recognised as being difficult to win.

They require defendants to prove that prosecutors displayed a clear animus towards them while they were trying to exercise their rights, and that charges would never have been brought except for that animus.

But Mr Dreeben said that dismissal was warranted in this case because Mr Trump had consistently attacked Comey since firing him as FBI director in May 2017, almost always in response to criticism raised by Comey.

He also pointed out that Ms Halligan had brought the charges at Mr Trump’s command, an assertion that the judge appeared to agree with. NYTIMES