Comey Case Update

Lots of news in the Comey case the last couple of days. Here’s where it stands after yesterday’s dust settled.

First, journos are having conniptions over an issue that, I think, is just not that big a deal — and I say that as someone who believes the prosecution is fundamentally flawed and should be thrown out pretrial. The frenzy involves the decision of Lindsey Halligan, the inexperienced prosecutor, to file a second indictment document with the court after the grand jury voted, based on the original indictment document, to charge two felony counts (false statement and obstruction) but reject (or “no true bill”) a third felony count (a different alleged false statement).

The second document merely included the two counts the grand jury had approved, and Halligan made no effort to conceal the first document, showing one proposed charge had been rejected. Nevertheless, in an opinion issued Monday, Magistrate Judge William Fitzpatrick described this as if it were a catastrophe for the ages because he suspected Halligan had not presented this second indictment document to the full grand jury.

There was an explosive hearing in court on Wednesday, but the day before, in a long piece assessing various grand jury issues raised in the case (and explaining why magistrate-judge opinions can be inconsequential), I made a prediction:

I suspect — though I can’t know for certain — that there was no second grand jury presentation. Rather, I surmise that, when she got to court [for the indictment return proceeding] around 6:47 p.m. . . . Halligan showed the grand jury, or at least the foreman, the newly drawn two-count indictment; I expect that the foreman, upon being assured that the two counts in the new indictment were the same was the two counts the grand jury had already approved from the original three-count indictment, simply signed it — just as he had signed the first one (with the no true bill, which reflected that at least one count had been rejected).

We now know that’s pretty much what happened. The wrinkle, which was confirmed at Wednesday’s court hearing when Halligan was questioned by Judge Michael Nachmanoff (the Biden appointee presiding over the case), is that only the foreman and one other grand juror was present at the time; hence, only they, and not the rest of the grand jury, ever saw the second indictment document.

I don’t see this as a problem because (a) the two counts were approved by a vote of the entire grand jury in the first document, which was filed in court; (b) the second indictment contain, word for word, the two counts the grand jury approved; and (c) Rule 6(f) (Federal Rules of Criminal Procedure) allows the indictment to be returned in court by the foreman, as long as a quorum of the grand jury has approved the charges.

Maybe I’ll be proved wrong, and the people saying the filing of an indictment document that was not reviewed and voted on by the entire grand is grounds for throwing out the case will turn out to be right. I doubt it. Constitutionally speaking, what matters is whether the grand jury approved charges, which it did; the physical indictment is the documentary confirmation of the grand jury’s action, but it’s the action that counts.

In any event, in case you missed it, here’s the post from yesterday on the questioning of Lindsey Halligan by Judge Nachmanoff.

And here’s one from last night about another issue: the “declination memo.”

Under Halligan’s predecessor, Erik Siebert, the prosecutors at the U.S. Attorney’s Office for the Eastern District of Virginia drafted a declination memo, a standard Justice Department practice, explaining why prosecutors have concluded that the subject of an investigation should be charged. One of the two experienced prosecutors from the Eastern District of North Carolina, who were brought in to handle the case after Halligan’s shaky grand jury presentation, admitted under Nachmanoff’s withering questioning that he had been admonished not to discuss the declination memo by someone in the office of Deputy Attorney General Todd Blanche.

The existence of a declination memo cannot be a surprise — we already knew that President Trump banished Siebert and instructed Bondi to replace him with Halligan because Siebert had declined to charge Comey and another Trump political enemy, New York Attorney General Letitia James. Having worked in a U.S. attorney’s office for nearly 20 years, it’s unfathomable to me that a major investigation would be dropped without charges without a declination memo.

Consequently, it was both foolish and a very bad look for Main Justice to instruct line prosecutors not to acknowledge the memo. If the Comey case is righteous, the DOJ’s confident position should be: “Of course there’s a declination memo, but we think it’s poorly reasoned and we decided to charge the case for good reasons that we can explain.” That this was not the Trump DOJ’s approach may well boost Comey’s claim that the prosecution is unconstitutionally vindictive and selective (see here and here).

I expect we’ll get rulings in the next few days from Judge Nachmanoff on the grand jury and vindictive prosecution issues. There is also at least one more round of oral argument coming on other issues, including what I believe is Comey’s most meritorious claim: the motion to dismiss on the ground that the indictment fails to state a crime.

Finally, on a separate track, both Comey and James contend that Halligan is not statutorily qualified to serve as interim U.S. attorney and that the indictments against them should be thrown out because she exclusively handled the grand jury presentations. (See here, here, and here.) That consolidated motion is before Judge Cameron McGowan Currie, a Clinton appointee from the District of South Carolina assigned by the Fourth Circuit to decide the disqualification motions. Judge Currie says she will issue a ruling before Thanksgiving (a week from today).

If one or more of the motions to dismiss are not granted, Comey’s trial is scheduled to begin on January 5. I’d be surprised if this case makes it to trial.