The hearing Wednesday morning within the case in opposition to former FBI Director James Comey ended with a revelation by prosecutors and a conundrum: if a full grand jury by no means reviewed the ultimate set of costs handed up in opposition to Comey, are they void?
The query arose after a stunning forwards and backwards the place prosecutors conceded that as an alternative of presenting a brand new indictment to the grand jury after it declined to approve certainly one of three counts, interim US Attorney Lindsey Halligan merely introduced an altered model, omitting the rejected depend, to the Justice of the Peace’s courtroom for the grand jury’s foreperson to signal.
Her admission despatched shockwaves by way of the courtroom on Wednesday, the place attorneys have been gathered to argue a separate authorized concern of whether or not Comey was charged solely due to President Donald Trump’s animus towards him.
What will occur to the felony case was not instantly clear. Judge Michael Nachmanoff, regardless of showing exasperated and taking a number of seconds of silence to absorb what the prosecutors admitted, didn’t give away whether or not he considered the problem as a procedural or deadly error.
Nachmanoff didn’t make any rulings from the bench, saying that the problems earlier than him have been too “weighty” to instantly resolve.
But the choose did need the Justice Department to deal with Wednesday their authorized interpretation of what occurred with the grand jury, and the revelation is probably going to play into one other ongoing battle within the case the place protection attorneys have asserted that federal investigators and prime prosecutor Halligan mishandled the case.
The former FBI director has pleaded not responsible to mendacity throughout congressional testimony.
Nachmanoff called on Halligan — Trump’s handpicked US legal professional for the Eastern District of Virginia who secured the indictment in opposition to Comey by herself — to clarify precisely what grand jurors did, or didn’t, see.
Halligan appeared pissed off as she confirmed that solely the foreperson and one different juror – not the whole grand jury – noticed the ultimate indictment. In the temporary change, she tried to reply the choose earlier than he completed asking his query and concluded the change with a terse “OK.”
The forwards and backwards lasted about one minute.
Nachmanoff additionally educated his consideration on a unique prosecutor on the case, Tyler Lemons, and requested him to explicitly affirm that the ultimate doc was by no means introduced to the grand jury.
“I wasn’t there, but that is my understanding,” Lemons mentioned.
After the hearing concluded, folks related with the prosecutors’ workplace instructed NCS that they weren’t certain how problematic Halligan’s admission will be for the case. Some could think about it a clerical error that may very well be mounted, whereas others see a risk it may very well be the deadly flaw within the case, as Comey’s group initially argued on Wednesday.
Prosecutors have six months to “cure” an indictment that was dismissed over authorized points, in accordance to the Justice Department manual, even when the statute of limitations has expired – as is the case for Comey’s costs.
Comey’s legal professional Michael Dreeben mentioned that, given the testimony of the prosecutor, “no indictment was returned.”
And even when it’s a authorized drawback, a grand jury doc flub could pale as compared to different points which have arisen within the case and are nonetheless taking part in out in court docket, together with concerning what Halligan instructed the grand jurors about Comey’s rights, the proof and the regulation.
Grand jury transcripts
The concern over the indictment may additionally assist in protection attorneys’ efforts to acquire entry to the grand jury transcripts, a problem that’s presently earlier than a Justice of the Peace choose in the identical courthouse.
That choose initially allowed Comey’s group to have entry to the grand jury materials, discovering in his personal evaluation that “the record points to a disturbing pattern of profound investigative missteps.”
Prosecutors shortly requested the Justice of the Peace choose to pause the order in order that they might file an attraction, which the Justice of the Peace choose allowed.
The hearing centered totally on protection attorneys’ efforts to have the case dismissed as a result of, they argue, it was introduced at the route of Trump and born from his animosity towards Comey.
“The president of the United States has caused the executive branch to prosecute a perceived enemy,” Dreeben started his arguments.
Dreeben, citing a social media post from Trump addressed to the legal professional common and calling for the prosecution of Comey and different political enemies, argued that the president has gone after the previous director to “punish Mr. Comey for speaking out against him.”
Lemons pushed again, arguing that Comey was making “inferential leaps” in arguing that the case is selective and vindictive.
The prosecutor mentioned that there’s “no proof” that Halligan took Trump’s social media submit “as a charge.”
“Ms. Halligan was not a puppet,” he added.
Still, the choose questioned “what independent examination could she have made” within the few days between her appointment and the costs being introduced in opposition to Comey.
Nachmanoff additionally pressed Lemons on whether or not earlier prosecutors who labored on the case earlier than Halligan’s appointment had submitted a memo recommending that Comey not be prosecuted.
Lemons instructed the choose that somebody in Deputy Attorney General Todd Blanche’s workplace instructed him he couldn’t disclose “privileged” information with out their permission, which included the existence of any memo.
“At this point, my position would be, whether there was a declination memo, is privileged,” Lemons mentioned, including that “I don’t know in the world of documents there is a declination memo.”
Nachmanoff challenged the assertion, pushing Lemons to finally say that “someone in the Deputy Attorney General’s office” had instructed him not to say something.
Asked why, Lemons demurred, conceding briefly that he has “reviewed” draft memorandums – each declination and prosecution memos – and different inner communications, however declined to give further particulars.
“I hope you understand that I am trying to answer your questions,” Lemons mentioned.