o borrow a line from a fellow Missourian, reports of the Comey prosecution’s death have been greatly exaggerated. Despite the media’s best efforts to wish it away, former FBI Director James Comey is very much still facing the music. Comey was indicted in late September on two counts stemming from his testimony during a September 2020 congressional hearing — the very same hearing where he delivered the kind of evasive, carefully lawyered answers that became his trademark at the FBI:
False statements within the jurisdiction of the legislative branch of the United States Government [18 U.S.C. § 1001(a)(2)]
Obstruction of a Congressional proceeding [18 U.S.C. § 1505]
There was some chatter Wednesday afternoon after a hearing on Comey’s latest attempt to wriggle off the hook — this time by claiming “vindictive prosecution.” During the proceeding, U.S. District Judge Michael Nachmanoff of the Eastern District of Virginia reportedly pressed DOJ attorneys about an apparent discrepancy between the indictment form shown to the grand jury and the version ultimately filed with the court:
The Justice Department acknowledged Wednesday that the grand jury that indicted former FBI Director James Comey was never shown the final version of the charges.
Prosecutors revealed the lapse under questioning by the judge overseeing the case. Comey’s attorneys argued the omission warrants dismissing the indictment. The judge did not immediately rule.
In a back-and-forth in Judge Michael Nachmanoff’s courtroom in the Eastern District of Virginia on Wednesday, DOJ attorney Tyler Lemons admitted that the indictment handed up on Comey was never fully reviewed by the full grand jury. Instead, Halligan brought an altered version to the magistrate’s courtroom for the grand jury’s foreperson to sign.
Naturally, this led the ‘mainstream media’ to produce some rather ominous headlines and stories:
Trump’s DOJ Admits Comey Grand Jury Never Saw Final Indictment
Comey case hanging by a thread as judge squeezes DOJ over Halligan’s handling
And that development came right on the heels of a Monday ruling by Magistrate Judge William Fitzpatrick, who ordered the DOJ to hand over grand jury materials to Comey’s defense team — something that almost never happens under normal circumstances.
All of this understandably led to speculation that the Comey indictment was on life support. I saw the same reports floating around yesterday and even started drafting a piece myself — but I held back, because everything we had came from secondhand accounts of what was said in the courtroom. The available filings didn’t yet paint a clear picture.
And it’s a good thing I waited. After the hearing, the DOJ filed its objections to Judge Fitzpatrick’s order requiring disclosure of grand jury materials, and then — earlier today — submitted a notice correcting the record. Taken together, those filings make it clear the grand jury did, in fact, return a true bill on two counts, exactly the ones spelled out in the indictment.
The confusion stemmed from the fact that prosecutors originally presented three counts. The grand jury declined to indict on the first one, but did indict on the second and third. The indictment was then adjusted to remove the rejected count, elevating the remaining two into the official charges — and that amended two-count indictment was properly signed by the foreperson, with another juror present. (The rest had already headed home for the day.)
In short: the indictment is real, it’s intact, and despite the wishful thinking in certain corners, it isn’t going anywhere.
If you want an even more thorough explainer on this, I highly recommend checking out Techno Fog’s Substack on it, though it does require a subscription. But the long and short of it is, yes, there was a bit of an irregularity here, but it was as to form, not substance. And no, it shouldn’t prove fatal to the indictment.
Now, does that mean Judge Nachmanoff will see it that way? No. Nor does it guarantee the indictment will survive some of the other challenges raised against it. But for all the breathless proclamations that the grand jury never actually saw the indictment, and ZOMG! — folks should simmer down. They did. It just had an additional count in it that was subsequently removed because they didn’t agree on that one. Nothing new or different was added. Something no longer pertinent was removed.
If you want an even deeper dive into the details, Techno Fog has an excellent breakdown on Substack — though it requires a subscription. The gist, however, is straightforward: yes, there was a procedural hiccup, but it was an issue of form, not substance. And no, it’s not the sort of thing that blows up an indictment.
Of course, that doesn’t mean Judge Nachmanoff is guaranteed to see it that way. Nor does it mean the indictment is immune to the other challenges Comey’s defense team is throwing at it. But as for the breathless claims floating around that the grand jury “never even saw the indictment” and all the dramatic ZOMG! hand-wringing — people need to calm down. The grand jury did see the indictment. It just originally contained an additional count they declined to endorse. That count was removed. Nothing new was slipped in; something they didn’t approve was simply taken out.
