Washington — Former FBI Director James Comey is seeking to dismiss the criminal case against him because of what he claims were “fundamental errors” in the grand-jury process and interim U.S. Attorney Lindsey Halligan’s handling of the indictment.
Comey’s filing, submitted to the federal court in Alexandria, Virginia, on Friday, reflects information revealed during a court proceeding earlier this week, during which federal prosecutors said that the grand jury that indicted Comey on two criminal counts did not vote on the operative indictment.
Defense lawyers instead said that the grand jury rejected the only indictment that Halligan presented to it, and argued that the government’s attempt to prosecute Comey without a “valid” indictment violates his Fifth Amendment rights.
In addition to questioning the validity of the operative indictment, which charges Comey with one count of lying to Congress and one count of obstructing a congressional proceeding, defense lawyers argued that the case should be dismissed because of alleged misconduct by Halligan before the grand jury.
Halligan, who was appointed interim U.S. attorney in late September, mere days before Comey was indicted, was the only prosecutor who presented the case against Comey before the grand jury, and only she signed the indictment. Comey has pleaded not guilty to both counts.
“Those errors reflect the reckless and ill-conceived nature of this prosecution: A president intent on prosecuting Mr. Comey before the statute of limitations expired directed the appointment of a White House aide, Lindsey Halligan, as interim U.S. Attorney, and she then rushed to secure an indictment while flagrantly violating basic grand jury rules in the process,” Comey’s lawyers wrote in their bid to dismiss the case. “Those grand jury errors warrant dismissal twice over.”
Questions about the proceedings before the grand jury gained steam Monday when a federal magistrate judge identified what he said was a “disturbing pattern of profound investigative missteps” in its handling of the case against the ex-FBI director.
U.S. Magistrate Judge William Fitzpatrick found that during Halligan’s presentation to the grand jury, the former White House aide made two statements that “on their face appear to be fundamental misstatements of the law that could compromise the integrity of the grand jury process.”
Halligan worked as a former insurance lawyer before joining Mr. Trump in the White House for his second term. She had no prosecutorial experience when she was tapped to lead the U.S. Attorney’s Office for the Eastern District of Virginia.
Grand jury transcripts are typically secret, but U.S. Magistrate Judge William Fitzpatrick reviewed them as part of a separate hearing on the grand-jury material in Comey’s case and whether it should be handed over to the defense.
Fitzpatrick said one statement Halligan made to the grand jury “suggests” that Comey does not have a constitutional right to not testify at trial. The second remark from Halligan suggested that the grand jury “did not have to rely on only the record before them” and that there was “more evidence — perhaps better evidence” that the Justice Department had that would be used at trial, the judge said.
In a statement, a Justice Department official said that “when the grand jury transcript is read in full — as federal judicial ethics require — it shows that U.S. Attorney Halligan’s statements were entirely proper. Selectively quoting half-sentences cannot create impropriety where none exists.”
Fitzpatrick also raised concerns with the evidence the Justice Department used in its grand jury presentation, finding that much of the material used was seized by the FBI in an earlier probe into Daniel Richman, a law professor at Columbia University and friend of Comey’s who was investigated during the first Trump administration for allegedly leaking to the media. The investigation was closed in 2021 and no charges were filed.
Fitzpatrick said the materials seized from Richman were the “cornerstone” of Halligan’s presentation to the grand jury that voted to indict Comey, and found that the Justice Department may have used information that was collected but outside of the scope of the initial Richman search warrants, as well as potentially privileged information, during the grand-jury proceedings in Comey’s case.
The FBI, Fitzpatrick said, “chose to rummage through” the material it seized more than five years ago again this summer when it began investigating Comey, and “inexplicably, the government elected not to seek a new warrant for the 2025 search” of Richman’s devices, “even though the 2025 investigation was focused on a different person, was exploring a fundamentally different legal theory, and was predicated on an entirely different set of criminal offenses.”
A Justice Department official said “the Government remains committed to following the law, respecting grand-jury secrecy, and ensuring that judicial decisions rest on facts — not assumptions. The magistrate judge’s order does not meet that standard.”
During a hearing Wednesday before U.S. District Judge Michael Nachmanoff, who is presiding over Comey’s case, the judge repeatedly questioned federal prosecutors about the validity of the operative indictment and the events surrounding the grand-jury proceedings on Sept. 25.
Documents made public in Comey’s case show that the grand jury was initially presented with a three-count indictment, but rejected one of the counts and voted to indict him on the two others.
Tyler Lemons, an assistant U.S. attorney, told the judge that after the grand-jury coordinator informed the U.S. attorney’s office about the outcome of the vote, a second indictment was drafted to remove the rejected count and list only the two approved by the grand jury.
But the admission prompted Nachmanoff to question whether the grand jurors had ever been presented with and voted on the second two-count indictment, or whether it was given straight to a U.S. magistrate judge who was presiding over the return of the indictment.
Lemons said the two-count indictment was given straight to the judge, and argued it was not a “new” indictment. Instead, he said it had been edited only to reflect the grand jury’s decision to charge Comey with lying to Congress and obstruction of a congressional proceeding.
Nachmanoff then asked if the second indictment was never shown to the entire grand jury. The prosecutor said that was correct. Halligan separately told the judge that only the foreperson for the grand jury and another grand juror were in the courtroom when the indictment was presented to the magistrate judge. That assertion was also backed up in a court filing Wednesday, when the Justice Department said that the “corrected indictment” with only the two counts marked was presented to the grand jury foreperson and deputy foreperson.
Comey’s lawyers seized on that admission, and argued during the hearing that the operative indictment was never presented to the grand jury and never voted on.
“There is no indictment that Mr. Comey is facing,” Michael Dreeben, one of his attorneys, told the judge.
Prosecutors attempted to clear up confusion about the proceedings and, pointing to the transcript of proceedings when the indictment was returned, wrote in a filing Thursday that the foreperson told the court that the grand jury voted on the two-count indictment.
“The complete record eliminates any doubt: The foreperson confirmed the vote. The Court acknowledged the vote. The Court docketed the two-count true bill as the operative indictment. Only Count One lacked concurrence; Counts Two and Three were true-billed by at least twelve jurors,” they said.
But in their latest bid to dismiss the charges related to the alleged grand-jury issues, Comey’s lawyers argued that “there is no record of the grand jury seeing the new indictment — let alone voting on it.” Prosecutors’ “late-breaking” effort to correct the record “cannot save the putative indictment,” they continued.
Their filing, defense lawyers said, “contradicts numerous other representations that the government has made to this Court. And it rests on an erroneous overreading of an ambiguous exchange between the grand jury foreperson and the magistrate judge.”
The topic of the hearing earlier this week was Comey’s effort to dismiss the indictment on the basis that his prosecution is vindictive and selective. Nachmanoff has yet to rule on that motion. Comey is also seeking to have the charges tossed out on the grounds that Halligan was unlawfully appointed interim U.S. attorney. A different judge is weighing that request and has said she intends to rule before Thanksgiving.