Federal prosecutors admitted Wednesday that the two-count indictment against former FBI Director James Comey was never presented to the full grand jury.
Comey has pleaded not guilty to making false statements and obstructing Congress.
During a hearing that lasted just under 90 minutes, the U.S. District Judge questioned prosecutors about how the grand jury indictment was approved and whether proper procedures were followed. Interim U.S. Attorney Lindsey Halligan initially sought a three-count indictment, but after the grand jury disagreed with one charge, a new two-count indictment was drafted. But the judge pressed the government on whether the proper steps were taken in filing that second indictment.
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“Let me be clear that the second indictment, the operative indictment in this case that Mr. Comey faces, is a document that was never shown to the entire grand jury or presented in the grand jury room; is that correct?” the judge asked.
“Standing here in front of you, Your Honor, yes, that is my understanding,” replied Tyler Lemons, the assistant U.S. Attorney leading Comey’s prosecution.
The admission raises new doubts about Halligan's handling of the case, whom prosecutors maintain was solely responsible for deciding to pursue charges and take the case to the grand jury.
A former federal prosecutor told Scripps News it is possible for the government to remedy the confusion about the indictment and confirm the intentions of the grand jury.
The court also pressed the government attorneys on whether the reported declination memo exists. Previous news reporting says career prosecutors wrote a memo explaining why they thought there wasn’t enough probable cause to indict Comey. Lemons told the judge he reviewed that memo, but he wouldn’t answer specific questions about it, citing instructions from the deputy attorney general’s office.
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Comey is seeking to have the criminal case dismissed. His attorneys argue the prosecution is vindictive and rooted in former President Donald Trump’s personal animus toward him.
Defense lawyers again pressed that argument Wednesday, telling the court the case “never would have been brought” if not for Trump’s September 20 Truth Social post, which they say amounted to an instruction for the Justice Department to prosecute Comey.
Government lawyers rejected that claim, insisting Halligan acted independently.
The judge did not rule on the vindictive-prosecution motion, saying it involved “weighty issues” requiring further consideration. He offered no timeline for when he might issue a decision.
The next hearing is scheduled for Dec. 9 to address additional defense motions. A separate ruling expected in the coming days on whether Halligan was lawfully appointed as interim U.S. attorney could also determine the future of the case.
