James Comey asks for his indictment be dismissed over Lindsey Halligan’s grand jury revelation
By Holmes Lybrand, Katelyn Polantz, Devan Cole, CNN
(CNN) — Attorneys for former FBI Director James Comey are asking a federal judge to dismiss the charges against him because, they say, a grand jury never approved the final indictment in the case.
The motion to dismiss comes after prosecutors, including interim US Attorney Lindsey Halligan, said in court this week that the indictment — which omitted a count that the grand jury rejected — was not seen in its final form by all grand jurors.
“The grand jury voted to reject the only indictment that the government presented to it,” Comey’s attorneys wrote in Friday’s filing. “Instead of presenting the grand jury with a revised indictment, Ms. Halligan signed a new two count indictment that the grand jury had never seen or voted on.”
Comey’s team is asking the judge to toss the case by as soon as Monday because of the “flagrant nature of the government’s misconduct during the grand jury process.”
“Because at least 12 jurors did not ‘approve the actual indictment,’ there is no valid indictment of Mr. Comey,” defense attorneys said in their filing Friday.
The motion could set the stage for another dramatic week in the Comey case before courts break for Thanksgiving.
The new defense request compiles in one place nearly every grievance a magistrate judge and Comey’s team have compiled regarding the belief the Justice Department has acted inappropriately by charging Comey.
Halligan, the lead federal prosecutor in Comey’s criminal case said in court earlier this week that a full grand jury never reviewed the final indictment brought against him, but she reversed course in a brief filed Thursday saying there were no mistakes in how the indictment was handled in September.
Halligan said part of the transcript from the September 25 hearing, when a magistrate judge in Alexandria, Virginia, was notified of the grand jury’s vote to approve charges against the ex-FBI director, “conclusively refutes” any suggestion that a problem exists with that part of the case.
Of prosecutors’ efforts to revise the prosecutors’ prior statements, Comey’s attorneys wrote their claims contradict “numerous other representations that the government has made to this Court.”
Their arguments, defense attorneys added, “rests on an erroneous overreading of an ambiguous exchange between the grand jury foreperson and the magistrate judge.”
In a separate filing Friday, Comey’s team of attorneys also argued that a magistrate judge’s decision to turn over grand jury materials to the defense should remain in place despite prosecutors’ efforts to thwart it.
The judge presiding over Comey’s case paused the magistrate judge’s decision to allow prosecutors to file an objection, which they did earlier this week.
In the original ruling, the magistrate judge found “the record points to a disturbing pattern of profound investigative missteps” in his ruling for prosecutors to hand over the grand jury material.
Comey’s attorneys say that the prosecutors’ arguments for why the material should not be released to them amounts to allowing the house to “burn down simply because they were not expecting the fire department to show up.”
They added that the judge’s “order directing the government to disclose the grand jury materials was neither clearly erroneous nor contrary to law.”
“He found that ‘particularized and factually based grounds exist to support the proposition that irregularities in the grand jury proceedings may create abasis for dismissal of the indictment,’” Comey’s attorneys wrote, citing the magistrate judge’s opinion.
Comey’s attorneys have said there are several glaring issues with how Halligan — just days after she was appointed — presented the case to the grand jury, including by misstating Comey’s rights and through investigative missteps in the case.
This story was updated to add additional reporting.
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