Is the Comey Prosecution on Thin Ice? Not As Thin

To borrow a phrase from a fellow Missourian, studies of the Comey prosecution’s death have been significantly exaggerated. Former FBI Director James Comey, of course, was indicted in late September on two counts in relation to statements he made during a congressional listening to in September 2020: 

1. False statements within the jurisdiction of the legislative department of the United States Government [18 U.S.C. § 1001(a)(2)]
2. Obstruction of a Congressional continuing [18 U.S.C. § 1505]

There was a bit of buzz on Wednesday afternoon following a listening to in the case on a movement by Comey’s protection crew to dismiss the fees against him on the foundation of vindictive prosecution. Eastern District of Virginia Judge Michael Nachmanoff reportedly grilled Department of Justice (DOJ) legal professionals over a purported discrepancy between the indictment type offered to the grand jury and the closing model filed in the case. 

The Justice Department acknowledged Wednesday that the grand jury that indicted former FBI Director James Comey was never shown the closing model of the fees.

Prosecutors revealed the lapse under questioning by the choose overseeing the case. Comey’s attorneys argued the omission warrants dismissing the indictment. The choose didn’t immediately rule.

…

In a back-and-forth in Judge Michael Nachmanoff’s courtroom in the Eastern District of Virginia on Wednesday, DOJ attorney Tyler Lemons admitted that the indictment handed up on Comey was never absolutely reviewed by the full grand jury. Instead, Halligan introduced an altered model to the Justice of the Peace’s courtroom for the grand jury’s foreperson to signal.

This, in flip, produced reasonably ominous-sounding headlines like:

And that was on the heels of a Monday ruling by Magistrate Judge William Fitzpatrick ordering the DOJ to flip over grand jury supplies to the protection — supplies which usually wouldn’t be shared with the protection.  

SEE ALSO: Judge’s Order Compelling DOJ to Disclose Grand Jury Materials in Comey Case Could Spell Trouble

Oh, Please: Comey Has the Gall to Ask Judge to Dismiss His Case Due to ‘Vindictive’ Prosecution

All of which led to the inference that the Comey indictment wasn’t long for this world. I read the reporting yesterday, and even started to write one thing up on the matter, but I hesitated because the only info I had to go on was studies of what was said in the listening to, and the court paperwork out there at that level did not shed a lot gentle on the state of affairs. 

As it seems, I’m glad I held off. Subsequent to the listening to, the DOJ filed its objections to Fitzpatrick’s order relating to the disclosure of the grand jury supplies, and then, earlier today, filed a discover correcting the document, both of which help set up that the grand jury did, in fact, return a true invoice on two counts, those being the two listed above.

The confusion arose from the fact that there have been initially three counts, the first of which the grand jury didn’t agree on. It was the second and third counts that they returned an indictment on. So the indictment was amended to take away the (authentic) first depend and embrace only the second and third counts (which turned the first and second), and that was signed off on by the grand jury foreperson, with one other grand juror current. (The relaxation had apparently left for the day.) 

If you need an even more thorough explainer on this, I extremely suggest trying out Techno Fog’s Substack on it, though it does require a subscription. But the long and short of it’s, yes, there was a bit of an irregularity right here, but it was as to type, not substance. And no, it should not show deadly to the indictment. 

Now, does that imply Judge Nachmanoff will see it that means? No. Nor does it guarantee the indictment will survive some of the other challenges raised against it. But for all the breathless proclamations that the grand jury never truly noticed the indictment, and ZOMG! — people ought to simmer down. They did. It just had an extra depend in it that was subsequently eliminated because they did not agree on that one. Nothing new or different was added. Something no longer pertinent was eliminated. 

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