The Justice Department is going on the offensive to discredit the federal judge overseeing the case against former FBI director James B. Comey.
In statements and a legal filing, officials have scolded the jurist for using a synonym in court and have tried to contradict a stunning — and potentially damaging — admission prosecutors made at least seven times over the course of the past week.
At an explosive hearing Wednesday in federal court in Alexandria, Virginia, prosecutors disclosed that they never showed the final version of the Comey indictment to a fully constituted grand jury, a lapse that could be fatal to their case.
An ensuing publicity blitz from interim U.S. attorney Lindsey Halligan and a Justice Department spokesman shored up support for the embattled prosecution from conservative media. But the strategy could antagonize U.S. District Judge Michael S. Nachmanoff at a critical time, as the judge weighs whether Comey is the target of a vindictive prosecution orchestrated by government officials acting outside ethical lines.
“What happens when you allege that the judge is personally attacking you? … You’re at risk of poking the bear,” said Tim Belevetz, a former prosecutor in the Eastern District of Virginia who supervised fraud and public corruption cases. “The best practice, frankly, is to attack your opponent’s position, and not even attack your opponent personally, but attack their position.”
President Donald Trump fired Comey from the FBI director’s job in 2017 and has criticized him ever since, first calling for his prosecution in 2018. The president this year forced out the interim U.S. attorney he had appointed in the Eastern District of Virginia, Erik S. Siebert, who declined to seek charges against Comey, and replaced him with Halligan, a White House aide who had no prior experience as a prosecutor. Trump then took to social media days before the legal deadline to file charges against Comey to demand that Attorney General Pam Bondi prosecute the former FBI director and two others.
A two-count indictment Halligan obtained alleges that Comey gave false testimony to the Senate Judiciary Committee in 2020, when he denied authorizing leaks to the news media, and that he obstructed the same congressional proceeding. Comey has pleaded not guilty.
The case could be dismissed before trial as a vindictive prosecution outlawed by the Constitution. Comey would have to establish that Halligan acted with “genuine animus” or “was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a ‘stalking horse,’” according to a legal precedent. Comey also must show that he would not have been prosecuted “except for the animus.”
In court Wednesday, Nachmanoff asked an attorney for Comey about that language, which had been quoted repeatedly in legal briefs prior to the hearing. “So your view is that Ms. Halligan is a stalking horse or a puppet, for want of a better word, doing the president’s bidding?” the judge asked Michael R. Dreeben, an attorney for Comey.
“Well, I don’t want to use language about Ms. Halligan that suggests anything other than she did what she was told to do,” Dreeben responded, before adding: “She didn’t have prosecutorial experience, but she took on the job to come to the U.S. attorney’s office and carry out the president’s directive.”
In a statement to the New York Post after the hearing, Halligan complained that Nachmanoff had attacked her. A Justice Department spokesman later posted her statement on X.
“Personal attacks — like Judge Nachmanoff referring to me as a ‘puppet’ — don’t change the facts or the law,” Halligan said. She then scolded the judge: “The Judicial Canons require judges to be ‘patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity’ … and to ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’”
Justice Department spokesman Chad Gilmartin posted on X that Nachmanoff had “launched an outrageous and unprofessional personal attack yesterday in open court against US Attorney Lindsey Halligan.”
Judges often use synonyms. When asked why Nachmanoff’s question was a personal attack instead of a legally relevant query, Gilmartin said, “There is no case law for the pejorative word ‘puppet,’ which is the precise language this federal judge used in open court.”
Another issue that could doom the case before trial centers on the unorthodox way Halligan’s office finalized the Comey indictment.
The grand jury rejected an initial version of the charging document that contained three counts. There is general agreement that the panel rejected the first of those counts, a point that the foreperson affirmed in open court Sept. 25.
Halligan’s office prepared a second version of the indictment, removing the first count and keeping the two counts the grand jurors had voted to approve. Halligan then presented that second version of the indictment to the court.
But what happened between the initial grand jury vote and the presentation of the eventual two-count indictment has been the subject of varying statements by government lawyers.
Over the course of one week, Halligan and her assistant prosecutors indicated at least seven times in court arguments or filings that the full grand jury was never presented the final version of the indictment. But after Nachmanoff drilled down on that issue at Wednesday’s hearing, prosecutors submitted a court filing that gave a contradictory account of events.
At Wednesday’s hearing, the judge asked Assistant U.S. Attorney N. Tyler Lemons: “That new indictment was never presented to the entire grand jury in the grand jury room; is that correct?”
Lemons conferred with Halligan and then told the judge: “Your honor, the government’s position and understanding of the way things proceeded is that there was only one indictment presented,” but he added that “the edits to the indictment were only to reflect the voting of the grand jury and were not an actual new indictment in any way whatsoever.”
Nachmanoff tried again: “Let me be clear that the second indictment, the operative indictment in this case that Mr. Comey faces, is a document that was never shown to the entire grand jury or presented in the grand jury room; is that correct?”
“Standing here in front of you, your honor, yes, that is my understanding,” Lemons responded.
In a sworn statement filed in court, Halligan had given an account that largely tracked with what Lemons told the judge. She said she presented the case to the grand jury once and then left the room. About two hours later, she said, she was informed that the panel rejected the first count and approved the two others.
“I then proceeded to the courtroom for the return of the indictment in front of the magistrate judge,” Halligan said. “During the intermediary time, between concluding my presentation and being notified of the grand jury’s return, I had no interaction whatsoever with any members of the grand jury.”
A deputy chief in Halligan’s office instructed the grand jury coordinator “to amend the indictment by removing the text of former count one, and moving the remaining counts, two and three, to reflect as counts one and two,” the prosecution said in a filing Wednesday.
“The grand jury coordinator then returned to the grand jury room and presented the corrected indictment to the grand jury foreperson and the deputy foreperson,” that filing states.
The next day, however, Assistant U.S. Attorney Gabriel J. Diaz gave a new account of events. It relied on a brief response the grand jury foreperson had made to the magistrate judge when she received the indictment.
“So you voted on the one that has the two counts?” the judge asked. “Yes,” the foreperson said.
“This sworn testimony alone establishes that the grand jury voted on the two-count indictment,” Diaz argued in the filing.
Asked to clarify whether the full grand jury saw the final version of the indictment, the Justice Department referred to the foreperson’s response to the magistrate judge and Diaz’s filing.
Comey’s attorneys argued that “the case should be dismissed because the grand jury never approved the operative indictment,” citing a court rule that says, “A grand jury may indict only if at least 12 jurors concur.”
“But here, at least 12 jurors did not concur in the operative two-count indictment; and the grand jury rejected the only indictment that the government presented to it,” the defense argued in a court filing Friday.
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