DOJ Admits Grand-Jury Lapse in Comey Case — How Federal Grand Juries Work in Secret

A high-profile dispute over whether an indictment against former FBI Director James Comey will stand has put a spotlight on federal grand juries and the largely secret process they use to bring charges.

The Justice Department has acknowledged there may have been a procedural issue in how Comey’s case was presented to a grand jury in Alexandria, Virginia. Comey has asked a judge to dismiss the indictment, arguing among other things that the government acted vindictively.

Comey faces two counts: an alleged false statement from 2020 and obstruction of Congress. He has pleaded not guilty and denied wrongdoing, calling the prosecution politically motivated and linked to pressure from the president.

Why grand juries exist

The federal grand jury system has deep roots in English legal history, where ordinary citizens, independent of royal authority, were called upon to determine whether criminal charges should proceed. In the United States, the grand jury function is embedded in the federal charging system: a federal criminal case typically proceeds only after a grand jury decides there is sufficient cause to indict.

"It was grafted into our constitution: No federal case can be charged without consideration of a federal grand jury," said Mark Chutkow, a former federal prosecutor.

How the grand jury process works

Federal grand juries are panels of 16 to 23 citizens who meet in private. Those summoned can serve for months, but they do not sit every day. A prosecutor presents evidence through witnesses and documents; judges generally do not participate unless legal issues arise during testimony.

Grand juries do not decide guilt. Instead, they determine whether there is probable cause to charge someone with a crime. As former U.S. Attorney Matthew Schneider explained, "They’re not being asked to decide, beyond a reasonable doubt, whether a crime occurred. They’re being asked if there’s probable cause that a crime occurred."

Unlike a trial jury, a grand jury does not require unanimity to return an indictment: 12 juror votes are sufficient in federal courts. Grand jurors, along with prosecutors and investigators, are bound to secrecy. Witnesses called before the grand jury may speak publicly afterward, though authorities sometimes discourage disclosure.

Discretion, criticism and safeguards

Grand jurors exercise judgment and can decline to return an indictment if the evidence does not support charges. Still, critics sometimes argue that prosecutors control the process and that political pressure can influence decisions. In contentious cases, critics point to examples where grand juries have refused to return indictments amid controversy, saying those refusals reflected concerns about weak evidence or outside influence.

At the same time, grand juries can request additional witnesses or evidence on their own initiative, providing a degree of independence from prosecutors.

What’s at issue in the Comey proceedings

U.S. Magistrate Judge William Fitzpatrick reviewed a transcript and questioned whether the full grand jury had seen the final two-count indictment against Comey. A Justice Department attorney acknowledged that the full panel had not reviewed the final indictment as presented.

Comey’s lawyer, Michael Dreeben, argued that failing to present the complete indictment to the entire grand jury provides a legal basis to dismiss the case. U.S. District Judge Michael Nachmanoff, who would preside over any trial, said he would need time to consider the issue and rule.

The procedural question is likely to shape the next steps in the case: if a court finds the grand-jury presentation defective in a way that prejudiced Comey’s rights, the indictment could be dismissed; if not, the case may proceed to trial.