Comey case hanging by a thread as judge squeezes DOJ over Halligan’s handling

The judge also appeared puzzled after a lead prosecutor said he couldn’t reveal whether career attorneys initially recommended against charging the former FBI director.

POLITICO

By Kyle Cheney and Josh Gerstein

11/19/2025 

ALEXANDRIA, Virginia — The Trump administration’s criminal prosecution of former FBI Director James Comey appeared to be in serious jeopardy Wednesday as the federal judge overseeing the case repeatedly questioned the validity of the grand jury indictment charging Comey with lying to and obstructing Congress.

U.S. District Judge Michael Nachmanoff pressed prosecutors during a hearing on the events around the Sept. 25 charges against Comey, questioning whether the entire grand jury ever saw the two-count indictment that a magistrate judge received after the grand jurors rejected one of three charges proposed by interim U.S. Attorney Lindsey Halligan.

Nachmanoff, a Biden appointee, was so intent on establishing the precise sequence of events that day that he briefly called Halligan to the courtroom lectern, prompting her first substantive public remarks since she secured the charges.

“You’re counsel of record. You can address the court,” Nachmanoff said to Halligan, asking her to explain whether grand jurors beyond the foreperson were present when the original indictment and a narrower substitute one were presented to a magistrate judge.

“The foreperson and another grand juror was also present,” Halligan said, apparently confirming that all the grand jury members present that day did not see the substitute indictment prepared after the group declined one of the false-statement charges Halligan urged.

Nachmanoff did not say precisely what action he was contemplating about the possible irregularity in the grand jury process, but his intense focus on the issue suggested he may view it as critical and, perhaps, fatal to the government’s case.

As he addressed Halligan, the judge declared he “just wanted to make sure” that indictment had never been seen by the full grand jury.

Halligan confirmed that it had not. She then sat down after speaking for less than a minute.

Assistant U.S. Attorney Tyler Lemons, who handled the bulk of the argument Wednesday, suggested the replacement indictment was a necessity due to the grand jury turning down one of the proposed charges. “They really had no other way to return it,” he said.

Although there is no pending defense motion challenging the indictment on the grounds the judge raised, a lawyer for Comey, Michael Dreeben, seized on the issue. “There is no indictment,” he said, adding that the statute of limitations ran out Sept. 30, making the procedural misstep “tantamount to a complete bar” to prosecution.

The exchange about the validity of the indictment came at the tail end of more than an hour of argument focused on whether President Donald Trump’s calls for Comey to face charges and the unusual steps taken to bring them about have so tainted the case that it should be dismissed as a vindictive or selective prosecution.

Nachmanoff also pressed prosecutors about whether career officials had initially recommended against prosecuting Comey — only to be told by Lemons that the answer could be “privileged.”

Lemons, one of the lead prosecutors in Comey’s case, said the existence of a so-called declination memo — which could outline weaknesses in the case — might be considered internal “work product” material not subject to disclosure. He repeatedly declined to answer questions from Nachmanoff about the existence of a declination memo. Lemons added, however, that he had seen drafts of a declination memo as well as of a prosecution memo outlining the case against Comey.

“I am aware of written correspondence debating whether charges should be brought,” Lemons said as Nachmanoff pressed him.

The exchange was a significant moment: If career prosecutors initially urged against bringing the case, it could support Comey’s claim that the charges against him were brought with a political motive.

Nachmanoff, who is weighing Comey’s effort to dismiss the case on the grounds that it was brought to satisfy Trump’s personal vendetta against him, demanded to know who was preventing Lemons from discussing the possible existence of such a memo. Lemons said his position followed discussions with Deputy Attorney General Todd Blanche’s office.

Dreeben told Nachmanoff that prosecutors had not shared whether a declination memo existed. ABC reported in September — the day of Comey’s indictment — that career prosecutors in Halligan’s office had prepared a “detailed” memo urging against the Comey prosecution.

Dreeben spent an hour urging Nachmanoff to conclude that the case against Comey was brought solely because of Trump’s “personal animus” toward Comey.

Dreeben seized on Bondi’s recent embrace of Trump’s call to investigate Democrats linked to the Epstein files as an example of how the Justice Department responds to Trump’s whims. Bondi had concluded months earlier that no further criminal charges were supported by the Epstein evidence, Dreeben noted.

“We have never before seen in this country a blatant use of criminal justice to achieve political ends,” Dreeben said, citing Trump’s recent social media post that included a picture of Comey with an X over his face. “A message needs to be sent to the Executive Branch.”

Lemons began his argument by asserting that Comey’s indictment was the result of an apolitical grand jury process rooted only in the facts of the case.

“The defendant in this case was indicted because he lied to the Senate Judiciary Committee,” Lemons said, noting that the grand jury returned a “true bill” of indictment against him.

“We’ll have some questions about that,” Nachmanoff interjected, a nod to Comey’s challenge to the grand jury proceedings themselves.

A magistrate judge assisting Nachmanoff earlier this week ordered prosecutors to disclose the transcripts of Halligan’s grand jury appearance with Comey, an unusual ruling that he said was based on credible evidence that Halligan had botched some of the instructions to the grand jury and that it could support Comey’s motion to dismiss the case.

Nachmanoff briefly paused the ruling to give prosecutors a chance to appeal it. But he could rule on the matter as soon as next week.

The case against Comey appears to be on increasingly flimsy ground. Another federal judge is weighing whether Halligan was invalidly appointed to her post, and her ruling could sink the case against Comey. And earlier this week, a magistrate judge assisting Nachmanoff concluded that Halligan — who had no prior prosecutorial experience before President Donald Trump elevated her to the powerful position — may have made serious errors in presenting the Comey indictment to the grand jury.

Comey, who is facing two counts of lying to Congress in 2020 about the FBI’s investigation of Trump’s links to Russia, is seeking to have the case tossed as an egregious abuse of power by the Trump-led Justice Department. His indictment came just days before a legal deadline that would have barred prosecutors from bringing the case at all. And the charges came just five days after Trump publicly demanded, in a social media post directed at Attorney General Pam Bondi, that the Justice Department take aim at his political adversaries, including Comey, quickly.

That same week, Trump also engineered the ouster of the U.S. attorney overseeing the office in which Comey’s case was under review, and he urged Bondi to install Halligan to lead the office. Halligan presented the Comey case to the grand jury just days later.