Why is the government’s case against James Comey in jeopardy?
President Donald Trump has personally called for the prosecution of former FBI Director James Comey, a political opponent since his first term in office. But after a series of events in the courtroom this week, the prosecution appears to be hanging by a thread.
The Trump administration has tested the limits of the American judicial system throughout its first year back in office – especially by trying to install loyalists in influential positions in the Justice Department, which has historically been expected to operate above political influence.
The Comey case is part of what critics describe as the Justice Department’s co-optation of a legal retaliation campaign against his political opponents, including Mr. Comey and New York Attorney General Letitia James. Supporters are championing the president’s actions as a corrective to the “lawfare” they claim the Biden administration and other Democrats have carried out against Mr. Trump and his allies. The potential collapse of the case against Comey is also intertwined with some long-running themes at the Justice Department in the first year of Trump’s new term: the administration’s desire to appoint top federal prosecutors without the approval of the US Senate.
Why did we write this?
The main theme of President Donald Trump’s return to office has been his call for the prosecution of his perceived political enemies. In one of the most high-profile efforts against a former FBI director, a series of government missteps made the case likely to collapse.
the government Charged Mr. Comey was indicted in September on one count of false statements and one count of obstruction of congressional proceedings — both related to testimony he gave before the Senate Judiciary Committee in 2020.
Mr. Comey has pleaded not guilty to both charges. But it looks like the case may never see inside a courtroom anyway.
“Everything about last week’s proceedings was extraordinary,” says Shane Stansbury, a former federal prosecutor in New York.
What are the concerns about the grand jury process?
There are many reasons, but the most pressing is that the federal prosecutor in charge of the case appears to have made a serious procedural error before the grand jury.
Before bringing any criminal charges against an individual, a prosecutor must obtain an indictment from a grand jury. The secret procedure is intended to ensure that the government does not improperly prosecute anyone.
This process is one-sided. The grand jury only sees the evidence and hears from witnesses called by the prosecutor. But in the Comey case, it appears that the Justice Department’s lead prosecutor may have misled the grand jury.
The prosecutor is Lindsey Halligan, interim US Attorney for the Eastern District of Virginia. A former personal lawyer for Mr. Trump, who had no prosecutorial experience, was handpicked by the president for the position after pressuring the former attorney general of that district, Eric Seibert, to resign — reportedly after Mr. Seibert. Question the power In the case against Mr. Comey. The US Attorney’s Office for the Eastern District of Virginia declined to comment for this story.
Days later, Ms. Halligan obtained the indictment against Mr. Comey. But a raft of legal developments this week could sink the case.
On Monday, a district judge ordered the government to release grand jury materials provided to Mr. Comey’s lawyers because of a “troubling pattern of profound investigative errors” by the Justice Department that “potentially undermined.”[s] Integrity of Grand Jury Procedures.”
Judge William E. added: “The court recognizes that this is an exceptional remedy,” Fitzpatrick said in his submission. opinion. But “the possibility that government misconduct tainted the grand jury proceedings, [means the] Disclosure of grand jury materials under these unique circumstances is necessary to fully protect the rights of defendants.
U.S. District Judge Michael Nachmanoff stayed the order at the government’s request later that day, and scheduled a hearing for Wednesday. That hearing resulted in Ms. Halligan admitting that she never presented the final indictment to the full grand jury.
According to news reports, jurors rejected one count in the three-count indictment. Ms. Halligan then reportedly redrafted the indictment to delete the dismissed charge and presented it to a member of the grand jury and the foreman, the latter of whom signed it. This is not illegal in itself. Federal law allows the indictment to be returned by the foreman of the grand jury alone, according to Andrew McCarthy, a former assistant U.S. attorney who writes for National Review, especially when the indictment is returned late, as was the case with the Comey trial.
Mr. McCarthy added: “I believe there are significant problems with the Comey charges that should lead to the indictment being dismissed before trial. I do not believe that the unusual genesis of the two-count indictment is one of them.”
Jeffrey Cohen, a former federal prosecutor in Massachusetts, agrees that the details will determine “whether or not this was a harmless mistake.” He says this mistake has serious implications.
“The important principle is that the grand jury makes the charging decisions, not the prosecutor,” he says.
“We don’t like the idea, and we shouldn’t like the idea, that prosecutors can just indict people. There has to be a check on that authority, and that check is the grand jury,” he adds.
Judge Nachmanov said on Wednesday that he would not immediately rule on the future of the case.
In a court filing filed Thursday, Ms. Halligan called the grand jury matter a “biblical contradiction” and provided a transcript showing the grand jury foreman had voted on the two-count indictment, according to Associated Press.
Are there other issues in the case?
Another issue raised by Mr. Comey’s lawyers concerns his claim that the case should be dismissed because the prosecution is “vindictive and selective.”
“The government singled out Mr. Comey for prosecution because of his protected speech and because of President Trump’s personal animosity toward Mr. Comey.” File a lawsuit Argue.
Mr. Trump has shown great interest in the issue. In September, he publicly criticized Mr. Seibert for not yet pressing charges against Mr. Comey and Ms. James.
“I want him out,” the president said He told reporters On September 19th.
Three days later, Ms. Halligan was sworn in as interim U.S. Attorney for the Eastern District of Virginia.
Does a lawyer’s “temporary” status matter?
The “interim” label does not mean the appointment of Ms. Halligan nor the required Senate confirmation of Mr. Seibert.
The question of whether you can appoint two “temporary” US attorneys back to back is up for debate, and Mr. Comey also argues that his trial should be thrown out because Ms. Halligan was appointed illegally.
He is not the first to make this argument. Across the country, defendants have been challenging their trials because the cases were brought by federal prosecutors appointed on a temporary or acting basis without Senate approval.
Judges in three states Nevada, New Jerseyand ca – ruled that top federal prosecutors were acting illegally.
At a hearing this month, a different federal judge He looked skeptical On the legality of Ms. Halligan’s appointment. U.S. District Attorney Cameron McGowan-Curry said it hopes to issue a ruling by Thanksgiving.
It is unclear what will come first — a ruling on the grand jury issues from Judge Nachmanoff, or a ruling on the illegal appointment issue before Judge Curry — but there is no doubt that the Justice Department’s prosecution of Mr. Comey is still on thin ice.
Normally, a judge may give the Department of Justice the opportunity to appear before the grand jury again. Experts say that may not be possible here. The statute of limitations on the charges against Mr. Comey passed on September 30, eight days after Ms. Halligan was appointed.
“This appears to have been a rush job,” says Professor Stansbury, who teaches at Duke University Law School. “It does not appear that the government had the opportunity to be more deliberate.”