Comey, James cases could be tossed as judge weighs appointment of prosecutor

ALEXANDRIA, Va. (CN) — A federal judge tasked with deciding if criminal charges against former FBI director James Comey should be tossed pointed on Thursday to a portion of the grand jury transcript in his indictment that she said was missing.

Comey claims Lindsey Halligan, interim U.S. attorney for the Eastern District of Virginia and a former White House aide, improperly led the grand jury proceedings.

During a hearing Thursday, Justice Department attorney Henry Whitaker said that U.S. Attorney General Pam Bondi had reviewed the proceedings that led to Comey’s indictment over reportedly lying during a U.S. Senate judiciary committee meeting in September 2020.

But U.S. District Judge Cameron McGowan Currie, who had seen the grand jury record, interrupted: “She couldn’t have.”

She pointed out that for a portion of Halligan’s Sept. 25 presentation to the grand jury, beginning at 4:28 p.m., either the court reporter was absent or notes were not taken. Currie had previously ordered the Justice Department to hand over the full record of the grand jury indictment.

Responding by email, a Department of Justice spokesman pushed back against the judge’s remarks, writing that no time is missing from the transcript.

“That time period refers to when the jurors were deliberating behind closed doors, which would not be included in a transcription. This isn’t a story,” the spokesman said.

Both Comey and New York Attorney General Letitia James — who is being charged in a separate matter — are pushing for dismissal of their criminal indictments, contending that Halligan’s appointment as interim U.S. attorney for the Eastern District of Virginia violated law.

The two contend that the government’s prosecution is vindictive, at Trump’s behest. Their indictments were signed by Halligan alone, after Erik Siebert, who formerly held Halligan’s position, declined to pursue the cases, attorney Abbe Lowell, who represents James, said.

Under the Biden administration, Jessica Aber held the job. Her appointment was confirmed by the Senate. She resigned when Trump took office, and Bondi appointed Siebert in the interim.

But Trump reportedly began pressuring Siebert to indict Comey, along with James, who had led a civil fraud case against the president.

After Siebert’s resignation, Trump posted a message prodding Bondi to pursue Comey, James and Democrat Senator Adam Schiff of California.

“Lindsey Halligan is a really good lawyer, and likes you, a lot,” the president wrote.

Trump took down the message, but soon, Halligan was appointed interim attorney for the Eastern District of Virginia.

Comey’s attorney, Ephraim McDowell, said that allowing the Trump administration to appoint one interim attorney after another would create an end run around the Senate.

Similarly, Lowell described the case as a “bulwark against one branch aggrandizing its power against another.”

But Whitaker countered that Bondi had changed Halligan’s job title to special attorney. The previous appointment to interim attorney is not an issue, he said.

“It’s at best a paperwork error,” he said, adding that even if the appointment was invalid that’s not enough to dismiss the case.

But Lowell said that it would be a mistake to allow an unqualified individual to secure an indictment that would later be sanctioned. Halligan is described in court filings as an insurance lawyer with no prosecutorial experience.

Currie, a Bill Clinton appointee from the District of South Carolina, was brought to Virginia as a procedural step to avoid conflicts of interest. Her decision on Halligan’s appointment could lead to dismissal of Comey and James’ charges.

A prominent Trump critic, Comey faces charges of making false statements within the jurisdiction of the U.S. legislative branch and obstruction of a congressional proceeding. James has been charged with mortgage fraud. Both have pleaded not guilty.

Currie took the matter under advisement and said she would have a decision by Thanksgiving.