Comey Moves to Dismiss Indictment, Citing 'Fundamental Errors' in Grand-Jury Process and Prosecutor's Conduct

Former FBI Director James Comey has asked a federal court in Alexandria, Virginia, to dismiss the criminal indictment against him, arguing that "fundamental errors" in the grand-jury proceedings and the way interim U.S. Attorney Lindsey Halligan handled the case fatally undermine the prosecution.

What Comey says

In a filing submitted Friday, Comey's lawyers say revelations from a recent hearing show the grand jury never voted on the version of the indictment now being used to charge him. They argue the government attempted to proceed without a valid, properly returned indictment and that Halligan — appointed interim U.S. attorney days before the indictment and the sole prosecutor who presented the case to the grand jury — committed misconduct that violated Mr. Comey’s Fifth Amendment rights.

"Those errors reflect the reckless and ill-conceived nature of this prosecution," Comey’s team wrote, arguing the grand-jury mistakes "warrant dismissal twice over."

Judicial concerns and the evidence

U.S. Magistrate Judge William Fitzpatrick, who reviewed grand-jury transcripts at a separate hearing, said two statements Halligan made while presenting the case "on their face appear to be fundamental misstatements of the law that could compromise the integrity of the grand jury process." One remark, the judge said, suggested Comey lacked a constitutional right not to testify at trial; another implied the grand jury could rely on evidence beyond the record presented to them.

Fitzpatrick also criticized the government's use of material seized years earlier from Daniel Richman, a Columbia Law professor and friend of Comey's, in a probe that closed in 2021 with no charges. The judge found those materials were a "cornerstone" of the presentation and questioned whether the government relied on information beyond the scope of the original search warrants or on potentially privileged material. He also faulted the FBI for reexamining those seized materials this summer without seeking a new warrant tailored to the 2025 investigation.

Prosecutors' position

The Justice Department has defended Halligan, saying that when the grand-jury transcript is read in full it shows her statements were proper and that selective quotations have created a misleading impression. Prosecutors also point to the record from the return of the indictment: they maintain the grand-jury foreperson confirmed a vote and say Counts Two and Three were "true-billed by at least twelve jurors."

Confusion over the indictment

At a hearing before U.S. District Judge Michael Nachmanoff, prosecutors acknowledged the grand jury was initially presented with a three-count instrument, rejected one count, and that the office drafted a two-count version reflecting the grand jury's decision. But the parties dispute whether the full grand jury ever saw or voted on that edited two-count indictment. Prosecutors say the foreperson confirmed the vote; defense counsel say there is no record showing the full grand jury saw or approved the revised indictment and argue the returned document was never properly presented.

Other pending challenges

Comey has pleaded not guilty to one count of lying to Congress and one count of obstructing a congressional proceeding. He has also filed separate motions claiming the prosecution is vindictive and selectively targeted, and that Halligan's appointment as interim U.S. attorney was unlawful. A different judge has indicated she intends to rule on the appointment issue before Thanksgiving.

The case remains pending while judges consider the competing motions and the underlying questions about grand-jury procedure and prosecutorial conduct.