Comey’s lawyers are seeking to dismiss the case on the grounds of vindictive prosecution.

Then-FBI Director James Comey speaks during a Senate Intelligence Committee hearing on Capitol Hill in Washington on June 8, 2017. AP Photo/Andrew Harnik, File

 

Sam Dorman

Washington Correspondent

ALEXANDRIA, Va.—The Justice Department said in court on Nov. 19 that the full grand jury in former FBI Director James Comey’s case never saw the final indictment used to charge him, an issue Comey’s attorney described as fatal to the prosecution.

The revelation was made amid scrutiny of the grand jury proceedings, but this particular hearing was focused on Comey’s argument that the prosecution should be dismissed as vindictive and unconstitutional.

After some argument about the motion, Judge Michael Nachmanoff of the U.S. District Court for the Eastern District of Virginia asked Justice Department attorney Tyler Lemons for further details about the indictment.

In September, the grand jury was presented with a three-count indictment but rejected one of the counts. Interim U.S. Attorney for the Eastern District of Virginia Lindsey Halligan quickly followed by seeking approval of a subsequent indictment minus that count. Lemons acknowledged during questioning that the full grand jury had not seen that subsequent indictment, which is the operative one for the case before Nachmanoff.

After prompting from Nachmanoff, Halligan eventually took to the podium and indicated that the grand jury foreperson was present for the second indictment and had signed off on it.

In a closing statement, Comey’s attorney Michael Dreeben told Nachmanoff that the case should end if the full grand jury did not approve of the operative indictment. At the end of the hearing, Nachmanoff said he would not rule from the bench on the motion to dismiss based on vindictive prosecution. He also told the attorneys to brief him on precedents surrounding the role of a foreperson’s signature.

Related Stories

 

Judge Orders Prosecutors to Turn Over Evidence Against James Comey

 

DOJ Defends Comey Case’s Grand Jury Proceedings Amid Concerns From Judge

Nachmanoff asked both sides to address the case Gaither v. United States. In that case, the U.S. Court of Appeals for the District of Columbia Circuit upheld a criminal conviction that stemmed from an indictment that was seen only by the grand jury foreman. However, it also said that not presenting the indictment to other jurors was an error and that following the date of that decision in 1969, indictments brought in that manner should be rejected.

It is unclear whether Nachmanoff, whose court is under the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit, will follow that reasoning.

The Justice Department later submitted a filing arguing that the case in Gaither was different than Comey’s. Removing count one in the revised indictment did not bring about a significant deviation in substance from what the grand jury already approved, the department said.

It added that “the Grand Jury foreperson, as the representative of the Grand Jury, endorsed the revised two count Indictment by signing it and explaining on the record in open Court that the Indictment reflected the vote of the Grand Jury.”

The hearing was the latest attempt by Comey’s defense team to dismiss his case and added to questions surrounding the indictment. The indictment alleges that Comey lied while testifying to Congress on Sept. 30, 2020, and answering a question by Sen. Ted Cruz (R-Texas), who asked about the former FBI director authorizing leaks.

Halligan brought the indictment on Sept. 25, 2025, just before the five-year statute of limitations expired, making this particular indictment critical to charging Comey. His attorneys have also moved for Nachmanoff to dismiss the case with prejudice, which would mean that the Justice Department could not bring the same claims in a subsequent indictment.

Earlier this week, U.S. Magistrate Judge William Fitzpatrick ordered the Justice Department to provide the defense with more extensive information from the grand jury. In an opinion on Nov. 17, he acknowledged that what he was ordering was extraordinary but that the record pointed to “a disturbing pattern of profound investigative missteps, missteps that led an FBI agent and a prosecutor to potentially undermine the integrity of the grand jury proceeding.”

That order was later stayed by Nachmanoff to allow a response from the government.

When the government responded, it defended the indictment and grand jury proceedings, stating that “the procedure was proper.”

“As a result of the grand jury’s determination that probable cause existed to believe that defendant had committed two of the charges set forth in the proposed indictment, the draft indictment was amended to remove the first count and keep the remaining two counts on which the grand jury had concurred,” it said in a filing.

Judge Cameron McGowan Currie of the U.S. District Court for the District of South Carolina similarly questioned whether the indictment was validly ratified by Attorney General Pam Bondi.

During a hearing on Nov. 13, the judge indicated that there was a gap in the records of the grand jury proceedings that would make it impossible for Bondi to fully review them. In follow-up declarations from Bondi and Halligan, the Justice Department reaffirmed the indictment and disputed the idea that there was any improper discrepancy in the record.

Currie is expected to decide by Thanksgiving on both Comey’s and New York Attorney General Letitia James’s motions alleging that Halligan was invalidly appointed. Although the Justice Department has defended her appointment, it has also used Bondi’s ratification of the indictment as justification for not dismissing it even if Halligan’s appointment were invalid.

Comey’s attorneys have portrayed Halligan’s appointment as part of a rushed attempt to indict their client despite that previous prosecutors refused to do so. During the hearing, Dreeben noted that prosecutors had declined to pursue Comey in a previous investigation dubbed Arctic Haze. He also alluded to reporting indicating that Halligan’s predecessor, Erik Siebert, was reluctant to bring charges.

When pressed by Nachmanoff, Lemons refused to say whether the Justice Department had a declination memo, a memo stating opposition to pursuing prosecution. Lemons said he was instructed by the deputy attorney general’s office to not provide information about the existence of a memo. He also indicated that certain documents may be protected by a legal privilege that had not been waived.

Vindictive Intent

The defense’s motion to dismiss rests on the premise that Trump targeted one of his political enemies and ordered the indictment in retaliation against Comey exercising his First Amendment right to criticize the president.

Dreeben described the circumstances of the case as unprecedented and argued that the judge should issue an “extraordinary remedy.” Much of his argument focused on Trump’s Truth Social post from Sept. 20, in which the president appeared to urge Bondi’s action and named Comey, among others.

Trump wrote: “Pam: I have reviewed over 30 statements and posts saying that, essentially, ‘same old story as last time, all talk, no action. Nothing is being done. What about Comey, [Sen.] Adam ‘Shifty’ Schiff, [New York Attorney General Letitia James]??? They’re all guilty as hell, but nothing is going to be done.’”

In the same post, Trump accused Siebert of lying about resigning and said Halligan is a really good lawyer.

“We can’t delay any longer, it’s killing our reputation and credibility,” he wrote. “They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”

Dreeben described Trump as directing a prosecution, but Lemons emphasized that there was no evidence that Halligan had not independently decided to bring the indictment.

Nachmanoff seemed skeptical of this point, asking what type of independent evaluation Halligan could have made between the day she started on Sept. 22 and Comey’s indictment on Sept. 25. In response, Lemons suggested that he could discuss those details more if the court proceeded to discovery.

If you found this article interesting, please consider supporting traditional journalism

Our first edition was published 25 years ago from a basement in Atlanta. Today, The Epoch Times brings fact-based, award-winning journalism to millions of Americans.

Our journalists have been threatened, arrested, and assaulted, but our commitment to independent journalism has never wavered. This year marks our 25th year of independent reporting, free from corporate and political influence.

That's why you're invited to a limited-time introductory offer — just $1 per week for one year — so you can join millions already celebrating independent news.

Subscribe

Limited time offer. Cancel anytime.