James Comey's Case Could be Dismissed Due to Lindsey Halligan's Errors

As I have repeatedly written in these posts, there is a common view that authoritarian governments, regardless of their other faults, are able to get things done efficiently and effectively. The reality is that such governments are so often beset by corruption and incompetence that they are actually ineffective. This is a phenomenon frequently demonstrated by the administration of cult leader, convicted felon, and failed President Donald Trump. Yesterday there was another example, this time involving Lindsey Halligan, Trump's handpicked U.S. Attorney for the Eastern District of Virginia, and her case against former FBI Director James Comey.

It has become increasingly clear that Comey is going to beat the charges against him. It is not going to be a close call. As I joked with my wife yesterday, Comey is going to beat these charges harder than any charges have previously been beaten. By all appearances, Comey is not guilty of the allegations against him. More importantly, this case is unlikely to even make it to trial because of the myriad reasons for it to be dismissed.

One of the potential grounds for dismissal, and something for which Comey was in court yesterday, is Comey's claim that he is the target of vindictive prosecution. There is fairly solid evidence to support Comey's argument. As many will remember, this case started when Trump mistakenly posted publicly on Truth Social what had been meant as a private message to Attorney General Pam Bondi. In the post, Trump complained that there had been no legal action against Comey and a number of other Democrats with whom Trump is angry. He then suggested that Halligan, a former personal lawyer of his who had no prosecutorial experience, be appointed as the U.S. Attorney in place of Erik S. Siebert, who Trump had fired due to his failure to prosecute Comey. Trump said that "We can’t delay any longer" and that "JUSTICE MUST BE SERVED, NOW!!!" The message here is clear. Trump wanted Halligan to prosecute Comey and he wanted it done now. That is exactly what happened. Halligan received the appointment and within four days she obtained an indictment against Comey.

Trump ordering Bondi to appoint Halligan so that she can prosecute Comey is strong evidence of vindictive prosecution. But there is more. As I have previously written, it is likely that Halligan was unlawfully appointed. The details are technical, but U.S. Attorneys are normally required to undergo Senate confirmation. In the case of an open position, the law allows the Attorney General to appoint an interim U.S. Attorney for a single period of 120 days. After that deadline, the federal judges who serve in the district have the authority to appoint a replacement. In the case of the Eastern District of Virginia, Siebert was originally an interim appointment. He served the allowed 120 days, but then was appointed by judges in the district to continue in the position. When he was fired, no Senate-confirmed candidate had served in that position since his interim appointment. As a result, Bondi did not have the authority to appoint another interim U.S. Attorney. That authority was still with the judges of the district. Comey has challenged Halligan's appointment and, if her appointment is held to have been unlawful, his indictment — which she was the only prosecutor to sign — will likely be thrown out as invalid.

We learned yesterday that Halligan's appointment is not the only issue with the indictment. When Halligan sought a grand jury's indictment of Comey, it was her first experience with a grand jury. Not surprisingly, she made mistakes. She submitted three charges to the grand jury. The grand jury did not find grounds to indict on the first charge and, therefore, returned a "no true bill" for that charge. The grand jury found probable cause on the second and third charges, however. But then two unusual things happened. First, the foreperson of the grand jury signed a report saying that "12 or more grand jurors did not concur in finding an indictment in this case." This appears to suggest that the grand jury did not return a "true bill" for any of the charges. In fact, that was only true of the first charge. Later, at the magistrate's direction, the foreperson wrote in a notation replacing "in this case" with "count 1 only". More significantly, Halligan drafted another indictment in which she removed the first count, the one that has been rejected. The new indictment contained only the two remaining charges. By that time, the grand jury had been dismissed, except for the foreperson. Halligan obtained the foreperson's signature on the new indictment. The second indictment, the one that was used to charge Comey, had never been voted on by the grand jury. This is highly unusual and could potentially lead to the indictment being thrown out.

How these issues with the indictments came to light is a story in itself. The magistrate judge hearing the case was initially provided both the original indictment, along with the report saying that there had been no indictment in the case, and the second indictment that Halligan had redrafted. The judge was confused by two contradictory documents and questioned both the foreperson and Halligan. Halligan claimed to know nothing about the original indictment, despite her signature being on it. The magistrate eventually figured out that two true bills had been returned and had the foreperson notate the report that accompanied the first indictment. Comey's lawyers then noticed that the timeline did not suggest that there was enough time for the second indictment to have been drafted and then voted on by the grand jury. There was a brief period of confusion during which the judge questioned whether the grand jury transcripts were incomplete. There were allegations that Halligan may have met with the grand jury without a court reporter being present. The main issue is that there was no evidence that the grand jury had been presented with the redrafted indictment. Yesterday, Halligan confirmed in court that she did not present the second document to the grand jury. This could lead to the indictment being declared invalid.

Where things stand now is that Comey's indictment may be thrown out because it was never voted on by the grand jury. It might be thrown out because Halligan was not lawfully appointed. Or, it might be thrown out because of vindictive prosecution. Alternatively, none of those things will happen. If that is the outcome, the case will go to trial. As I mentioned, Comey has a strong argument for his innocence. It was also revealed yesterday that while Siebert was the U.S. Attorney, prosecutors drafted a memo declining to prosecute Comey. A government attorney stated in court that he had been told by the Attorney General's office not to discuss that finding in open court. It could not be more clear that this is a very weak case that was only brought due to Trump's pressure on Bondi. Regardless of how strongly Trump wanted to see Comey charged, it is very likely that the case will ultimately blow up in his face. I'm sure that Trump will enjoy the sight of Comey smiling and smirking about beating Trump in court.