Key point: A procedural error by interim U.S. Attorney Lindsey Halligan — filing two inconsistent grand-jury documents, with a revised two-count indictment that may never have been shown to the full grand jury — threatens to void the indictment against James Comey. Defense lawyers say the omission, together with the Sept. 30, 2020 statute-of-limitations deadline, could be dispositive. Prosecutors insist the foreperson endorsed the revised document and argue precedent is distinguishable. Judges will consider whether the misstep, along with questions about Halligan's appointment and a career prosecutors' memo, requires dismissal.
Paperwork Blunder by Prosecutor Threatens to Collapse James Comey Indictment
Key point: A procedural error by interim U.S. Attorney Lindsey Halligan — filing two inconsistent grand-jury documents, with a revised two-count indictment that may never have been shown to the full grand jury — threatens to void the indictment against James Comey. Defense lawyers say the omission, together with the Sept. 30, 2020 statute-of-limitations deadline, could be dispositive. Prosecutors insist the foreperson endorsed the revised document and argue precedent is distinguishable. Judges will consider whether the misstep, along with questions about Halligan's appointment and a career prosecutors' memo, requires dismissal.
01:50 AM, 11/21/2025Politics
Procedural Error Raises Serious Questions About Indictment
A procedural misstep by interim U.S. Attorney Lindsey Halligan has put the indictment against former FBI Director James Comey at risk, after she filed two inconsistent grand-jury charging documents just before the statute-of-limitations deadline.
Halligan, previously a defense lawyer for President Donald Trump and appointed interim U.S. attorney for the Eastern District of Virginia only days before the filing, submitted paperwork on Sept. 25 that created confusion in court. One version of the indictment listed three counts; another — which omitted the first count the grand jury had rejected — listed only two. Both documents bore the signature of the grand jury foreperson and Halligan's signature.
"This has never happened before," U.S. Magistrate Judge Lindsey Vaala said in court after being presented with two inconsistent documents in the same case.
U.S. Magistrate Judge William E. Fitzpatrick later explained the legal concern: if the revised two-count indictment was not presented to the full grand jury for consideration, the public charging document returned in open court would not match what the jurors actually saw and deliberated upon. That divergence, he wrote, places the case in "uncharted legal territory."
At a subsequent hearing before U.S. District Judge Michael Nachmanoff, Assistant U.S. Attorney N. Tyler Lemons conceded that Halligan had signed an "edited" version of the original indictment. Lemons ultimately acknowledged what Halligan testified to: the revised, two-count indictment appears to have been reviewed only by the grand jury foreperson, not by the entire panel.
Defense counsel argues that omission is dispositive. Michael Dreeben, representing Comey, contends that because the revised document was not shown to the full grand jury, "there is no indictment." He also notes the statutory deadline for these charges was Sept. 30, 2020, and says Halligan's procedural error is "tantamount to a complete bar" to prosecution.
The Fifth Amendment requires a grand jury indictment for felony charges, and a key precedent cited in court — Gaither v. United States (D.C. Cir., 1969) — has been interpreted to mean grand jurors must see the full text of the charging document. Judges asked both sides to brief whether Gaither controls the outcome here; prosecutors argue the ruling is distinguishable because the grand jury did see a proposed indictment and voted to find probable cause on two counts.
Halligan maintains dismissal is unnecessary. In a post-hearing brief she said the two counts in the edited indictment match the second and third charges originally shown to the grand jury and that the foreperson endorsed the revised two-count document in open court. The government argues that course of conduct was permissible and properly reflected the grand jury's vote.
Additional Challenges for the Prosecution
Beyond the paperwork dispute, Comey's team has raised several other grounds for dismissal. They allege the prosecution is selective and vindictive — motivated by President Trump's animus — argue that Halligan's interim appointment was unlawful because her predecessor had already served the statutory maximum for that role, and contend the evidence is legally insufficient to sustain the charges.
Reports that career prosecutors in Halligan's office prepared a memo advising against bringing charges have added to concerns about internal resistance. When asked about the memo at the hearing, Lemons initially said the document's existence would be privileged, then acknowledged the memo does in fact exist while maintaining it is protected work product. A brief filed by government counsel recognizes the memo's relevance to Comey's claim that no career or appointed prosecutor agreed to prosecute.
Internal reluctance is also suggested by the fact that the indictment originally bore Halligan's signature alone. After securing the indictment, Halligan recruited Lemons and another prosecutor, Gabriel J. Diaz, from a different district to assist — a move that underscored how few career prosecutors in her office were willing to join the effort.
Whatever the outcome, the dispute over inconsistent indictments, the timing of Halligan's appointment, the existence of the career memo, and the looming statute-of-limitations deadline have combined to make the indictment vulnerable. Judges will now decide whether the procedural defect requires dismissal, whether precedent like Gaither applies, and how to resolve competing claims about the government's motives and the sufficiency of the evidence.