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ALEXANDRIA, Va.—The Justice Department said in court on Nov. 19 that the full grand jury in former FBI Director James Comey’s case never saw the final indictment used to charge him—an issue Comey’s attorney described as fatal to the prosecution.

The revelation was made amid scrutiny of the grand jury proceedings, but this particular hearing was focused on Comey’s argument that the prosecution should be dismissed as vindictive and unconstitutional.

After some argument about the motion, U.S. District Judge Michael Nachmanoff asked Justice Department attorney Tyler Lemons for further details about the indictment.

In September, the grand jury was presented with a three-count indictment but rejected one of the counts. Interim U.S. Attorney for the Eastern District of Virginia Lindsey Halligan quickly followed by seeking approval of a subsequent indictment minus that count. Lemons acknowledged during questioning that the full grand jury hadn’t seen that subsequent indictment, which is the operative one for the case before Nachmanoff.

After prompting from Nachmanoff, Halligan eventually took to the podium and indicated the grand jury foreperson was present for the second indictment and had signed off on it.

In a closing statement, Comey’s attorney Michael Dreeben told Nachmanoff that the case should end if the full grand jury didn’t approve of the operative indictment. At the end of the hearing, Nachmanoff said that he wouldn’t rule from the bench on the motion to dismiss based on vindictive prosecution. He also told the attorneys to brief him on precedent surrounding the role of a foreperson’s signature.

Nachmanoff asked both sides to address the case Gaither v. United States. In that case, the U.S. Court of Appeals for the D.C. Circuit <a href="https://law.justia.com/cases/federal/appellate-courts/F2/413/1061/36450/#:~:text=Appellants%20Tatum%20and%20Gaither%20were%20convicted%20of,expedition%20to%20Woodward%20&%20Lothrop's%20Department%20Store.">upheld</a> a criminal conviction that stemmed from an indictment that was seen only by the grand jury foreman. However, it also said that not presenting the indictment to other jurors was an error and that following the date of that decision in 1969, indictments brought in that manner should be rejected.

It’s unclear whether Nachmanoff, whose court is under the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit, will follow that reasoning.

The hearing was the latest attempt by Comey’s defense team to dismiss his case and added to questions surrounding the indictment. It alleges that Comey lied while testifying to Congress on Sept. 30, 2020 and answering a question by Sen. Ted Cruz (R-Texas), who asked about the former FBI director authorizing leaks.

Halligan brought the indictment on Sept. 25, 2025, just before the five-year statute of limitations expired—making this particular indictment critical to charging Comey. His attorneys have also <a href="https://www.theepochtimes.com/us/judge-to-hear-comeys-bid-to-dismiss-indictment-5946204">moved</a> for Nachmanoff to dismiss the case with prejudice, which would mean the Justice Department couldn’t bring the same claims in a subsequent indictment.

Earlier this week, U.S. Magistrate Judge William Fitzpatrick ordered the Justice Department to provide the defense with more extensive information from the grand jury. In an opinion on Nov. 17, he acknowledged that what he was ordering was extraordinary, but said the record pointed to “a disturbing pattern of profound investigative missteps, missteps that led an FBI agent and a prosecutor to potentially undermine the integrity of the grand jury proceeding.”

That order was later stayed by Nachmanoff to allow a response from the government.

U.S. District Judge Cameron McGowan Currie similarly questioned whether the indictment was validly ratified by Attorney General Pam Bondi.

<span style="font-weight: 400;">During a hearing o</span>n Nov. 13, the judge indicated there was a gap in the records of the grand jury proceedings that would make it impossible for Bondi to fully review them. In follow-up declarations from Bondi and Halligan, the Justice Department reaffirmed the indictment and <a href="https://www.theepochtimes.com/us/doj-defends-comey-cases-grand-jury-proceedings-amid-concerns-from-judge-5945025">disputed</a> the idea there was any improper discrepancy in the record.

Currie is expected to decide by Thanksgiving on both Comey’s and New York Attorney General Letitia James’ motions alleging that Halligan was invalidly appointed. While the Justice Department has defended her appointment, it’s also used Bondi’s ratification of the indictment as justification for not dismissing it even if Halligan’s appointment were invalid.

Comey’s attorneys have portrayed Halligan’s appointment as part of a rushed attempt to indict their client despite prior prosecutors refusing to do so. During the hearing, Dreeben noted that prosecutors declined pursuing Comey in a prior investigation dubbed Arctic Haze. He also alluded to reporting that Halligan’s predecessor, Erik Siebert, was reluctant to bring charges.

When pressed by Nachmanoff, Lemons refused to say whether the Justice Department had a declination memo, or one stating opposition to pursuing prosecution. Lemons said that he was instructed by the deputy attorney general’s office not to provide information about the existence of a memo. He also indicated that certain documents may be protected by a legal privilege that hadn’t been waived.
<h2>Vindictive Intent</h2>
The defense’s motion to dismiss rests on the premise that Trump targeted one of his political enemies and ordered the indictment out of retaliation for Comey exercising his First Amendment right to criticize the president.

Dreeben described the circumstances of the case as unprecedented and argued the judge should issue an “extraordinary remedy.” Much of his argument focused on Trump’s TruthSocial <a href="https://truthsocial.com/@realDonaldTrump/posts/115239044548033727">post</a> from Sept. 20, in which the president appeared to urge Bondi’s action and named Comey, among others.

“Pam: I have reviewed over 30 statements and posts saying that, essentially, ‘same old story as last time, all talk, no action. Nothing is being done. What about Comey, [U.S. Sen.] Adam ‘Shifty’ Schiff, [New York Attorney General] Leticia [James]??? They’re all guilty as hell, but nothing is going to be done,’” Trump said.

In the same post, Trump also accused Siebert of lying about resigning and said “Lindsey Halligan is a really good lawyer.”

The president added, “We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”

Dreeben described Trump as directing a prosecution but Lemons emphasized there was no evidence that Halligan hadn’t independently decided to bring the indictment.

Nachmanoff seemed skeptical of this point, asking what type of independent evaluation Halligan could have done between when she started on Sept. 22 and Comey’s indictment on Sept. 25. In response, Lemons suggested he could discuss those details more if the court proceeded to discovery.

<em>From <a href="https://www.theepochtimes.com/us/doj-says-full-grand-jury-never-saw-final-comey-indictment-5946974">The Epoch Times</a></em>

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