Lindsey Halligan Confirms: Most Grand Jurors Never Saw Final Comey Indictment

How much does it matter?

T he chief prosecutor in the Trump Justice Department’s case against former FBI Director James Comey confirmed in court this morning that she did not show the final two-count indictment to the full grand jury that approved the charges on September 25.

At a hearing this morning in the Eastern District of Virginia (EDVa), Judge Michael Nachmanoff, the Biden appointee who is presiding, abruptly summoned the prosecutor, Interim U.S. Attorney Lindsey Halligan, to the courtroom. Halligan had never prosecuted a criminal case before Attorney General Pamela Bondi, at President Trump’s direction, installed her as the district’s top federal prosecutor on September 20. She had never handled a grand jury proceeding until the presentation five days later, hours after which an indictment charging Comey with two felony counts — making a false statement to a Senate committee and obstructing the Senate’s oversight function — was filed in court in an unusual early evening proceeding.

I wrote about the controversy in a lengthy piece yesterday (“Lindsey Halligan’s Botched Grand Jury Presentation Against Comey”). The saga about the highly irregular filing of the indictment is covered in the penultimate section, under the subheading, “The No True Bill and the Mysterious Filing of the Two-Count Indictment.”

Halligan was given the EDVa post after her predecessor, Erik Siebert, was forced out upon declining to prosecute Comey and another Trump political enemy, New York Attorney General Letitia James (who was indicted by Halligan on October 9).

After Halligan handled the Comey indictment by herself — she is the only prosecutor who appeared before the grand jury on September 25 and the only one to sign the indictment — two experienced federal prosecutors from North Carolina were brought in to handle the case.

As Politico reports, those prosecutors were conducting the oral argument regarding some of Comey’s pretrial motions to dismiss the indictment when Judge Nachmanoff began aggressively questioning them about the sequence of events in the grand jury leading up to the indictment’s filing in court. The judge then decided he wanted to hear directly from the prosecutor involved and thus summoned Halligan to the courtroom to answer his questions.

Halligan confirmed to Nachmanoff that the only grand jurors who saw the final version of the two-count indictment were the foreman and one additional member of the panel. They were the grand jurors in the courtroom when the indictment was returned in a proceeding before EDVa Magistrate Judge Lindsey Vaala. This is not unusual: Rule 6(f) of the Federal Rules of Criminal Procedure permits the indictment to be returned in court by the foreman of the grand jury. (It also permits the return to be done by the whole grand jury; given the unusual lateness of the hour when the Comey indictment was filed, it’s not surprising that the task was left to the foreman.)

To summarize, after Halligan completed her presentation of evidence and legal instructions to the grand jury, she departed the hearing room at 4:28 p.m. The grand jury proceeded to deliberate over a proposed three-count indictment. It charged Comey with two false statement counts and the obstruction count. The document Halligan had prepared was erroneously numbered: The false statement charges were labeled Count One and Count Two, but the obstruction count at the end was also labeled Count Two, rather than Count Three.

After over two hours, Halligan was alerted at 6:40 p.m. by the then-first assistant U.S. attorney (who has since left the office) that the grand jury had rejected the first false statement count but had approved the second one and the obstruction charge. (It is a pressing question how the first assistant knew that information since Halligan has represented to the court that the grand jury did not have contact with other government officials while it was deliberating.)

The rejection of one count necessitated the execution of a “no true bill” (which grand juries complete on the rare occasions when they vote against indicting). The no true bill form would eventually cause some confusion because it may have appeared, at least at first blush, as if all three proposed charges had been rejected.

Halligan prepared and signed a new indictment, which set forth only the two counts the grand jury had approved. That is, the false statement charge that was originally Count One was omitted, while the other false statement charge (approved by the grand jury) became Count One and the obstruction charges appeared as Count Two.

When the grand jury votes on an indictment, a return must be filed in the federal district court. By 6:47 p.m., Halligan was in the courtroom for that purpose. During this morning’s hearing, she explained to Judge Nachmanoff that only the foreman and another grand juror were present. The foreman signed the two-count indictment document Halligan had prepared.

Meantime, the originally proposed three-count indictment, signed by the foreman but with the no true bill form attached, was also in the courtroom. Both of these documents were presented to Magistrate Judge Vaala. She remarked on the unusually late hour and the oddity of being presented with two indictments. Halligan added to the confusion by initially saying she’d signed just one of them, only to be shown by Vaala that her signature appeared on both documents.

I mentioned the initial confusion about whether the no true bill applied to the entirety of the originally proposed three-count indictment or just one of the charges. I believe this is explained by the form used. It is called “Report of a Grand Jury’s Failure to Concur in an Indictment”; the form does not contemplate the rejection of some but not all propose charges. On the form executed in connection with the Comey grand jury, an annotation states, “Count 1 only.” Obviously, that refers to the first false statement count that the grand jury rejected; nevertheless, there is no indication regarding when and by whom the annotation was made.

Vaala reportedly engaged in colloquy with both Halligan and the foreman that is not on the public record (grand jury proceedings are secret). The grand jury just needs a simple majority to approve an indictment; it has been reported that 14 grand jurors (out of a maximum of 23 if the entire panel was in attendance) approved the two charges against Comey.

As I noted in yesterday’s piece, Magistrate Judge William Fitzpatrick, to whom Judge Nachmanoff has referred some of the fact-finding that must be done on the pretrial motions, has implied that Halligan was required by law to present the new two-count document to the full grand jury, have them deliberate on it, and have the foreman sign it in their presence. This morning, Judge Nachmanoff, too, intimated that the fact that the full grand jury did not see the two-count indictment was a grave error that might be grounds for voiding the charges.

That seems wrong to me. There is no reason to believe the no true bill was improperly executed by the grand jury; it indicates that two counts were approved. All the second document does is, word for word, repeat the two approved counts, while omitting the count the grand jury rejected.

Would it have been better if Halligan had presented the two-count document to the full grand jury? Absolutely. But hypothetically, let’s say Halligan never drafted the two-count document; the three-count document would still exist as a court record, properly executed, and it establishes that the grand jury approved two charges. There is no good reason to ignore that first document even if the second document is irregular; and I don’t see any harm in the second document, since it just reproduces the two counts that the grand jury incontestably approved.

To repeat what I’ve said before, I believe there are major problems with the Comey charges that should cause the indictment to be dismissed pretrial. I don’t believe that the unusual genesis of the two-count indictment document is one of them.