What you need to know
• Bombshell about grand jury: Interim US Attorney Lindsey Halligan took the stand briefly Wednesday, saying only two grand jurors reviewed the final indictment it handed up against former FBI Director James Comey. Comey’s attorney then argued Halligan’s testimony indicates, “there is no indictment” against his client.
Should it be tossed? A federal judge in Alexandria, Virginia, heard Comey’s arguments for why his indictment should be dismissed. Comey’s attorney, Michael Dreeben, argued the case was brought at the direction of President Donald Trump and based on his animosity toward Comey. Prosecutor Tyler Lemons said that Halligan was “not a puppet” and the case was based on Comey’s alleged lie.
• The case: Comey is accused of lying during a 2020 hearing about whether he ever authorized leaks to the press and has pleaded not guilty. The judge is weighing whether Trump’s history of anti-Comey comments and a social media post asking Attorney General Pam Bondi for “justice” enough to show Comey was unfairly plucked for prosecution.
Our live coverage of the court hearing has ended for the day. Read our takeaways report here.
People connected to prosecutors' office aren't sure where Halligan's testimony will lead
After the hearing, people connected with the prosecutors’ office weren’t sure how problematic interim US Attorney Lindsey Halligan’s testimony that a full grand jury didn’t see the former FBI Director James Comey’s indictment will be for the case overall.
Some may consider it a clerical error that could be fixed, while others see a possibility it could be the fatal flaw in the case, as Comey’s team immediately argued in court on Wednesday.
And even if it is a legal problem, a grand jury document flub may pale in comparison to other issues that have arisen in the case and are still playing out in court, including what Halligan, President Donald Trump’s handpicked prosecutor, told the grand jurors about Comey’s rights, the evidence and the law.
Justice Department told to address Comey grand jury bombshell by 5 p.m. ET today
Judge Michael Nachmanoff directed the Justice Department to respond in a filing by 5 p.m. ET tonight to the revelations that interim US Attorney Lindsey Halligan hadn’t presented the charges James Comey now faces to the full grand jury for approval.
Judge won't rule Wednesday, calling issues "too weighty"
Before ending the hearing around 11:30am ET, Judge Michael Nachmanoff said he would not make any ruling Wednesday on whether James Comey is being vindictively prosecuted after the revelation that a full grand jury never saw the final indictment handed up against Comey.
Correction: This post has been corrected to update a quote from Judge Michael Nachmanoff. Nachmanoff called the issues “too weighty.”
Lindsey Halligan says full grand jury never saw final indictment it handed up against Comey
The full grand jury never reviewed the indictment it handed up against former FBI Director James Comey, interim US Attorney Lindsey Halligan conceded Wednesday.
In a shocking back and forth, prosecutors said that instead of presenting a new indictment to the grand jury after it declined to approve one of the counts, Halligan simply brought an altered version to the magistrate’s courtroom for the grand jury’s foreperson to sign.
“The new indictment wasn’t a new indictment,” prosecutor Tyler Lemons said, attempting to justify that it was only reviewed by the foreperson.
Judge Michael Nachmanoff quickly called Halligan, who was the only prosecutor who presented the case to the grand jury, to the lectern, asking her to confirm that the entire grand jury was never presented the altered indictment.
The judge started, “Am I correct -”
“No, you’re not,” Halligan interrupted. She said that there was one additional grand juror in the magistrate’s courtroom and quoted her back-and-forth with that judge.
“I’m familiar with the transcript,” Nachmanoff said. He then told her to sit down.
Calling Lemons back to the stand, Nachmanoff asked: Am I correct that the new document was never presented to the grand jury for approval?
Lemons carefully responded, “I wasn’t there, but that is my understanding.”
Comey’s attorney Michael Dreeben then argued to the judge that, given the testimony of the prosecutor, “no indictment was returned.”
“There is no indictment,” he said, adding that the statute of limitations has now elapsed against Comey on charges of lying to Congress.
Justice Department lawyer: “Ms. Halligan was not a puppet"
Justice Department lawyer Tyler Lemons argued former FBI Director James Comey was making “inferential leaps” in arguing the case is selective and vindictive.
“There’s been no proof that US Attorney Halligan took” Trump’s social media post “as a charge,” Lemons said, referring to Lindsey Halligan, who President Donald Trump to be interim US Attorney in the Eastern District of Virginia. Halligan presented the case to the grand jury, which handed up the indictment.
“Ms. Halligan was not a puppet,” he added.
The judge then questioned “what independent examination could she have made” in the few days between her appointment and the charges being brought against Comey.
Meanwhile, hearing is set in investigation of another Trump enemy, Letitia James
Lawyers for New York Attorney General Letitia James and federal prosecutors in Albany, New York, will square off next month.
A federal judge set a hearing for December 4 for James to challenge the appointment of John Sarcone, the US attorney for the Northern District of New York, to try to get a subpoena he signed quashed.
Sarcone is leading the criminal investigation into the attorney general’s handling of two cases and whether anyone’s constitutional rights were violated. He signed a subpoena in August seeking information related to James’ case alleging President Donald Trump and the Trump Organization inflated the value of properties to get better interest rates on loans. A second subpoena relates to a civil investigation into the National Rifle Association.
James is arguing the subpoenas should be quashed because they are retaliatory, infringe on state’s rights and are overly broad.
The Justice Department said in court filings that a grand jury can issue subpoenas regardless of who is US attorney but they defended Sarcone’s appointment as legally valid.
Sarcone is the latest US attorney whose appointment has been challenged. In three other cases courts have found the Justice Department appointments have been unlawful.
DOJ lawyer says he was told by senior officials not to say if there was a memo not to prosecute Comey
Justice Department lawyer Tyler Lemons declined to say whether prosecutors have submitted a memo recommending that former FBI Director James Comey should not be prosecuted. Lemons told the judge that someone in Deputy Attorney General Todd Blanche’s office told him he couldn’t disclose “privileged” information without their permission.
“At this point, my position would be, whether there was a declination memo, is privileged,” Lemons said, adding that “I don’t know in the world of documents there is a declination memo.”
Judge Michael Nachmanoff challenged the assertion, pushing Lemons to say that, “someone in the Deputy Attorney General’s office” had instructed him not to say anything.
“What did someone in the Deputy Attorney General’s office instruct you not to say,” Nachmanoff asked.
Lemons conceded that he has “reviewed” draft memorandums, but declined to give additional details.
“I hope you understand that I am trying to answer your questions,” Lemons said.
Justice Department lawyer argues Comey was charged simply because he lied
Prosecutor Tyler Lemons began his argument Wednesday by arguing that former FBI Director James Comey was charged simply for lying to Congress.
“He was not indicted at the direction of the president of the United States,” Lemons said.
Lemons also said that a grand jury properly handed up the indictment.
“We’ll have some questions about that,” Judge Michael Nachmanoff said.
A magistrate judge has raised many potential issues with how the case was presented to the grand jury and Comey’s attorneys are seeking all transcripts in the proceedings.
Epstein files saga makes an appearance at the hearing
James Comey’s attorney Micheal Dreeben argued the ongoing controversy over the so called “Epstein files” shows that President Donald Trump is continuing to direct operations of the Justice Department.
Trump, Dreeben said, directed Bondi to open a new investigation into high-profile Democrats linked to Jeffrey Epstein, despite a Justice Department memo from earlier this year saying there was no basis for additional prosecutions based on the evidence it had.
Bondi’s response: “Thank you, Mr. President.”
Comey's attorney compares Trump's Truth Social post to famous King Henry II quote
Judge Michael Nachmanoff raised other comments Trump had made after his social media post directed at Attorney General Pam Bondi. In those comments, Trump told reporters that his post was not directing Bondi.
“I just want people to act,” the president said, according to the judge, who read Trump’s comments in the court.
“It doesn’t walk back anything he said to the US Attorney General,” Dreeben replied.
The comments after the social media post were “made for the press, not the Attorney General,” Dreeben said.
Dreeben compared the social media post to the famous line from King Henry II: “Who will rid me of this meddlesome priest?”
“Henry the Second can’t be binding precedent in this court,” the judge joked to laughter in the courtroom.
Comey lawyer: Trump's September social media post a "crystal clear" example of how the case is based on animosity
James Comey’s attorney argued Wednesday that President Donald Trump’s September social media post pushing the Justice Department to prosecute is a “crystal clear” example of why his client is being charged only because of the president’s personal animosity.
The post, Michael Dreeben, said, linked Comey to two other “enemies” of Trump, and portrayed his frustration that interim US Attorney Lindsey Halligan’s predecessor was resisting bringing charges. Dreeben was referring to Sen. Adam Schiff and New York Attorney General Letitia James.
“The President is underscoring what he wants here, [Erik] Siebert was not doing his job here.” The job of Siebert, who Trump replaced with Halligan, was to “prosecute,” Dreeben said.
“If that’s not a direction to prosecute, I’m not really sure what is,” Dreeben said.
Dreeben to judge: Trump's "hate or animosity or dislike" of Comey is not enough to bring a case
In his first question of the day, Judge Michael Nachmanoff asked James Comey’s attorney Michael Dreeben if he was arguing the case was brought to punish the former FBI director for using his free speech rights or that Trump was targeting Comey because of his personal animosity toward against him.
Dreeben told the judge it is both.
“The President’s hate or animosity or dislike of Mr. Comey” may be enough to initially fire Comey, Dreeben said, but not use the “full weight” of the criminal justice system against Comey.”
Comey is in court as hearing starts
Former FBI Director James Comey is in court as a hearing on whether the indictment against him should be tossed kicked off.
Comey’s attorney, Michael Dreeban, is arguing first.
“The president of the United States has caused the executive branch to prosecute a perceived enemy,” Dreeban began his arguments Wednesday.
Dreeban argued Trump has gone after the former director to “punish Mr. Comey for speaking out against him.”
DOJ: Trump was just sharing his thoughts, not ordering a prosecution
Comey points to a Truth Social post by President Donald Trump from September as an example of why the case against him is unfairly brought.
“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, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done,’” Trump wrote, referring to Comey, Sen. Adam Schiff of California, and New York Attorney General Letitia James.
The Justice Department has argued in court documents that in that post, and others referring to Comey, Trump was just stating his belief that the former FBI director had broken the law. They also argue that Comey wouldn’t be silenced by this prosecution and that it chose on its own accord to bring the case — just as it has prosecuted others for lying to Congress in the past.
“The President does not harbor vindictive animus against the defendant in the relevant sense,” prosecutors wrote.
Trump’s social media posts “reflect the President’s view that the defendant has committed crimes that should be met with prosecution. They may even suggest that the President disfavors the defendant,” the Justice Department also wrote. “But they are not direct evidence of a vindictive motive.”
Wednesday's argument: Hundreds of Trump tweets about Comey
Just look at all the social media posts, James Comey’s legal team will be arguing to a federal judge on Wednesday.
The goal of the arguments will be to convince Judge Michael Nachmanoff of the Eastern District of Virginia that the Justice Department’s decision to charge Comey was an abuse of power, coming at the direction of an angry and vindictive president – one who has long wanted Comey to face legal consequences and be silenced on the public stage.
To make the argument, called a vindictive and selective prosecution motion, Comey’s team has already submitted to the judge more than 60 pages of public statements of Comey and Trump sniping at one another over years. The majority of the social media posts are from Trump, and include his recent direction to Attorney General Pam Bondi to prosecute Comey and others in September.
They also note the unusual circumstances of interim US Attorney Lindsey Halligan taking the indictment through the grand jury herself, just days after she was appointed and less than a week before the Department ran out of time to charge the Comey case.
Motions like these are notoriously hard for defendants to win, though they are gaining some steam in court during this Trump administration, as top Justice officials make politically charged statements publicly about defendants under indictment.
If Nachmanoff doesn’t fully agree with Comey’s team’s argument on Wednesday, it’s possible the judge could tell the Justice Department it needs to hand over more internal records and potentially even pursue sworn statements by top administration officials, like Attorney General Pam Bondi or even Trump himself. That would likely bring about new rounds of court fights over access and confidentiality.
The arguments, however, also may highlight how entrenched Trump is in what some consider his retaliatory presidency.
All the ways James Comey is attacking the indictment
The Justice Department’s prosecution of former FBI Director James Comey could run into a buzzsaw before trial with more than one route for the possible disintegration of the case.
Wednesday’s arguments will focus on Donald Trump’s years of publicizing his hatred for how Comey led the FBI and oversaw the Trump and Clinton investigations in 2016 and 2017. Comey’s team says that makes the case unfair enough that it should be dismissed.
But other issues the defense is leaning into revolve around how the FBI and Justice Department prosecutors handled its investigation of Comey, including whether evidence used to bring charges this year was tainted and whether Interim US Attorney Lindsey Halligan appropriately prosecuted the case.
Comey’s team is trying to get the case trimmed or thrown out the case entirely by arguing:
• The evidence was unfairly used – either it was too old, hadn’t been authorized by a court to be accessed by investigators, or wasn’t properly reviewed by the government to filter out Comey’s communications with his attorney.
• Halligan abused the grand jury process, including by advising the grand jurors on the law incorrectly, regarding how a trial against Comey would work.
• The question asked by Texas Republican Sen. Ted Cruz in the 2020 Senate hearing where Comey allegedly lied was far too ambiguous to base a case around.
Separately, South Carolina-based federal Judge Cameron Currie is set to rule by next week on whether Halligan, serving as an interim US attorney, had the authority to prosecute Comey and another Trump political foe, New York Attorney General Letitia James, without being Senate confirmed.
Lindsey Halligan's work in the grand jury hangs over the case
Will Judge Michael Nachmanoff bring up what interim US Attorney Lindsey Halligan said to the grand jury – an approach so questionable it could prompt the case against James Comey to be dismissed?
He could.
Earlier this week, a magistrate judge’s opinion revealed multiple issues with Halligan’s work so far.
Nachmanoff is now set to review, as soon as this weekend, whether Comey’s team will be entitled to the full grand jury record.
The judge is also likely following the discussion in the court record so far describing what appears to be significant prosecutorial missteps.
Those include, as described this week by the magistrate judge assisting Nachmanoff on the case:
• Pushing forward a case where the evidence may not have been handled appropriately nor was authorized to be used.
• Suggesting to the grand jury it could approve the Comey indictment while misleading the grand jurors on the law. Halligan implied Comey would need to testify to win his case at trial and the Justice Department may bring in better, additional evidence later, according to the magistrate judge’s summary.
• The possibility that several minutes of a prosecutor’s discussion with the grand jury went unrecorded by a court transcriptionist.
It’s unclear how much discussion of Halligan with arise at the hearing. Comey’s defense team has focused its written arguments on the years of encouragement by Donald Trump for the Justice Department to charge Comey.
Halligan’s part of that alleged scheme, they argue, was to secure an indictment that other prosecutors wouldn’t greenlight.
Meet Michael Nachmanoff, the judge overseeing James Comey’s case?
Michael Nachmanoff, the federal judge overseeing the criminal case against former FBI Director James Comey, has throughout his career as an attorney and judge earned a reputation in Virginia’s legal community as a thoughtful, fair arbiter.
Legal sources who have won and lost cases before Nachmanoff have described the 57-year-old judge as someone who keeps his personal views well-guarded and as unlikely to further inflame the atmosphere around Comey’s prosecution.
Nachmanoff, a fourth-degree Karate black belt and Washington, DC, native, worked for over a decade in the Office of the Federal Public Defender for the Eastern District of Virginia before becoming a federal judge in the same district years later.
As a public defender, Nachmanoff argued before the Supreme Court in 2007, winning the case that gave federal judges the discretion to issue “reasonably” shorter prison sentences for crack-cocaine crimes.
