Is the Comey Prosecution on Thin Ice? Not As Thin As Some Might Have You Think
To borrow a phrase from a fellow Missourian, reports of the Comey prosecution's death have been greatly exaggerated. Former FBI Director James Comey, of course, was indicted in late September on two counts in relation to statements he made during a congressional hearing in September 2020:
- False statements within the jurisdiction of the legislative branch of the United States Government [18 U.S.C. § 1001(a)(2)]
- Obstruction of a Congressional proceeding [18 U.S.C. § 1505]
There was a bit of buzz on Wednesday afternoon following a hearing in the case on a motion by Comey's defense team to dismiss the charges against him on the basis of vindictive prosecution. Eastern District of Virginia Judge Michael Nachmanoff reportedly grilled Department of Justice (DOJ) lawyers over a purported discrepancy between the indictment form presented to the grand jury and the final version filed in the case.
The Justice Department acknowledged Wednesday that the grand jury that indicted former FBI Director James Comey was never shown the final version of the charges.
Prosecutors revealed the lapse under questioning by the judge overseeing the case. Comey’s attorneys argued the omission warrants dismissing the indictment. The judge did not immediately rule.
...
In a back-and-forth in Judge Michael Nachmanoff's courtroom in the Eastern District of Virginia on Wednesday, DOJ attorney Tyler Lemons admitted that the indictment handed up on Comey was never fully reviewed by the full grand jury. Instead, Halligan brought an altered version to the magistrate's courtroom for the grand jury's foreperson to sign.
This, in turn, produced rather ominous-sounding headlines like:
- Trump’s DOJ Admits Comey Grand Jury Never Saw Final Indictment
- Comey case hanging by a thread as judge squeezes DOJ over Halligan’s handling
And that was on the heels of a Monday ruling by Magistrate Judge William Fitzpatrick ordering the DOJ to turn over grand jury materials to the defense — materials which normally would not be shared with the defense.
All of which led to the inference that the Comey indictment wasn't long for this world. I read the reporting yesterday, and even began to write something up on the matter, but I hesitated because the only information I had to go on was reports of what was said in the hearing, and the court documents available at that point didn't shed much light on the situation.
As it turns out, I'm glad I held off. Subsequent to the hearing, the DOJ filed its objections to Fitzpatrick's order regarding the disclosure of the grand jury materials, and then, earlier today, filed a notice correcting the record, both of which help establish that the grand jury did, in fact, return a true bill on two counts, those being the two listed above.
The confusion arose from the fact that there were initially three counts, the first of which the grand jury did not agree on. It was the second and third counts that they returned an indictment on. So the indictment was amended to remove the (original) first count and include only the second and third counts (which became the first and second), and that was signed off on by the grand jury foreperson, with one other grand juror present. (The rest had apparently left for the day.)
If you want an even more thorough explainer on this, I highly recommend checking out Techno Fog's Substack on it, though it does require a subscription. But the long and short of it is, yes, there was a bit of an irregularity here, but it was as to form, not substance. And no, it shouldn't prove fatal to the indictment.
Now, does that mean Judge Nachmanoff will see it that way? No. Nor does it guarantee the indictment will survive some of the other challenges raised against it. But for all the breathless proclamations that the grand jury never actually saw the indictment, and ZOMG! — folks should simmer down. They did. It just had an additional count in it that was subsequently removed because they didn't agree on that one. Nothing new or different was added. Something no longer pertinent was removed.
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