Prosecutors Admit Full Grand Jury Never Reviewed Final Comey Indictment; Defense Calls Case Invalid

Federal prosecutors told a court they never presented the final, two-count indictment against former FBI director James Comey to the full grand jury—an omission his lawyers say could nullify the prosecution.

What happened

Comey was indicted on Sept. 26 on two counts: making a false statement to Congress and obstructing a congressional proceeding, arising from his 2020 testimony that he had not "authorized someone else at the FBI to be an anonymous source in news reports" about Hillary Clinton. Court filings show that a separate false-statement count had been proposed but rejected by the grand jury.

After the grand jury declined that additional charge, prosecutors prepared a revised indictment containing only the two counts the panel approved. When pressed in court, the lead prosecutor acknowledged that only the grand jury foreperson and one other juror saw that revised two-count document—rather than the full grand jury.

Positions of the parties

Comey’s lawyers argue the procedural omission voids the indictment. "There is no indictment Mr. Comey is facing," said Michael Dreeben, one of Comey’s attorneys, in court.

Prosecution: Assistant U.S. Attorney N. Tyler Lemons says the change was ministerial: the final indictment merely removed a count the grand jury had already rejected and the two remaining counts are the same as those the grand jury considered. He argues that numbering and paragraph changes do not require dismissal.

Defense and outside observers: Former prosecutors have described the lapse as "highly problematic" and potentially a "fatal flaw," noting that established grand jury procedures normally require jurors to review the charging instrument they are asked to approve.

Procedural and judicial developments

A magistrate judge previously signaled possible "government misconduct" and found at least two "fundamental and highly prejudicial" misstatements of law were made to the grand jury. That judge ordered prosecutors to turn over grand jury materials to Comey’s defense team—an unusual step that the government has appealed, and that order is currently stayed pending resolution of the appeal.

The prosecution also noted that career prosecutors had earlier expressed doubts about whether the evidence supported charges; the deputy attorney general’s office reportedly instructed the lead prosecutor not to disclose whether a memo explaining that view exists.

Why this matters

Grand jury procedure protects defendants’ constitutional rights by ensuring the panel has a clear, accurate charging document before voting. If a court finds the final indictment was not properly presented, the result could range from a limited remedy to dismissal of the charges—depending on whether a judge views the error as harmless or prejudicial to the grand jury’s decision-making.

The case remains active while courts consider the parties’ arguments and the government’s appeal of the order to disclose grand jury materials.