Law & Crime
November 23, 2025
On Sept.
30, when I wrote for Law&Crime about why James Comey's lawyers should be happy after his indictment,
I underestimated the weakness of the government's case against the former head of
the FBI.
The indictment against Comey charges him with lying to and
obstructing Congress during an appearance he made in September 2020 in front of
the Senate Judiciary Committee. At the hearing, he was asked questions about
whether he had authorized anyone at the FBI to serve as an anonymous source in
newspaper articles about the Russian election interference investigation.
This past
September, Erik Siebert, interim U.S. Attorney for the Eastern District of
Virginia, was being pressured by the Trump administration to indict Comey.
Seibert resisted, presumably because the U.S. ttorney's office felt the case
lacked merit. He voiced concerns about the viability of the case and his
office's memo declining prosecution.
On Sept.
19, Trump said he wanted Siebert "out." Siebert resigned later that
day. The following day on social media, President Trump demanded Attorney
General Pam Bondi appoint a replacement for Siebert and bring charges against
Comey, New York Attorney General Letitia James, and Sen. Adam Schiff, D-Calif.
Trump continued, "we can't delay any longer."
That
social media post by the president was a gift — a gift that keeps on giving. As
the Jeffrey
Epstein scandal forced the president to capitulate to Congress
on the release of the investigative files, Trump publicly
asked Bondi to go after "Democrats" linked to Epstein.
Months
ago, Bondi said there were no more criminal charges coming from the Epstein
evidence.
Her
response to Trump's post: "Thank you, Mr. President. SDNY U.S. Attorney
Jay Clayton is one of the most capable and trusted prosecutors in the country,
and I've asked him to take the lead. As with all matters, the Department will
pursue this with urgency and integrity to deliver answers to the American
people."
Comey's
attorneys, as expected, have asked the federal judge overseeing the case to
dismiss the charges against him because they were politically motivated, a vindictive
prosecution against a political enemy of the president.
According
to Politico, one of Comey's lawyers, Michael Dreeben, a former
deputy solicitor general who has argued more than 100 cases before the U.S.
Supreme Court, seized on Trump's post and Bondi's acquiescence.
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In a
hearing this week, Dreeben spent an hour laying out why the court should
conclude that the indictment against Comey was brought solely because of
Trump's "personal animus" toward Comey.
To no
one's surprise, Dreeben pointed to Bondi's recent kowtowing to Trump on yet
another call for political retribution. "We have never before seen in this
country a blatant use of criminal justice to achieve political ends,"
argued Dreeben.
How can
things possibly get worse for the Comey prosecution? Well, let me tell you.
When Trump fired Seibert, Lindsey Halligan was appointed interim U.S. attorney.
With literally no experience in criminal law, Halligan was forced to seek a
grand jury indictment before the statute of limitations on Comey's alleged
crimes expired on Sept. 30, 2025.
Apparently,
the novice prosecutor who was charged with getting an indictment against a
former director of the FBI may have made some mistakes. First, during the
hearing, Halligan allegedly misrepresented to the grand jury that Comey could
not exercise his Fifth Amendment right to remain silent. I don't know if that
is a fatal error, but anyone who has a television knows that suspects and
defendants — real or written into a crime drama script — have "the right
to remain silent."
The more
interesting problem, one that Halligan admitted in court on Nov. 19, is that
apparently not all grand jurors had an opportunity to review the two-count
indictment, approved after the grand jury rejected one of the counts in the
initial three-count indictment.
U.S.
District Judge Michael Nachmanoff briefly asked Halligan to answer some
questions. He told Halligan, "You're counsel of record. You can address
the court," asking her to explain whether any grand jurors beyond the
foreperson were present when the original indictment and a narrower substitute
were presented to a magistrate judge.
"The
foreperson and another grand juror was also present," Halligan said,
apparently confirming that a significant majority of jurors did not see the
second indictment.
According
to Politico, the judge said he "just wanted to make sure" that the
indictment had not been seen by the full grand jury. Again, Halligan confirmed
that it had not.
The
prosecution of Comey appears to be in serious jeopardy. Nachmanoff could rule
as early as next week.
Matthew T.
Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book
The Executioner's Toll (2010) was released by McFarland Publishing. He is a
regular contributor to Law & Crime. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino
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