“If Lindsey Halligan lied to the grand juries or omitted exculpatory evidence in securing indictments in the James Comey and Letitia James cases, would there be any way to prove it? And by whom and how would such accusations be raised and investigated?” — Gina
Hi Gina,
We got a sense this week of how that could play out. Included in James Comey’s latest round of motions to dismiss his indictment is one that seeks disclosure of the grand jury proceedings, which are usually kept secret.
In that motion, filed Thursday, the former FBI director’s lawyers wrote that the known facts to date raise a “significant risk that irregularities in the grand jury process may have influenced the grand jury to return an indictment.”
Such motions are challenging for defendants to win, because they don’t know what happened in the grand jury. Still, they need to put forth enough evidence to convince a judge that they should be able to see what happened.
So, you might wonder, how can Comey’s lawyers succeed here? In their motion, they note that under the relevant procedural rule and legal precedent, courts can order disclosure when defendants show that “particularized and factually based grounds exist to support the proposition that irregularities in the grand jury proceedings may create a basis for dismissal of the indictment.”
They argue that there are multiple grounds here: that the events leading to indictment show that it “was driven by improper animus” and that, because she was unlawfully appointed, Halligan “never should have been in the grand jury at all”; that due to the “highly irregular procedure” leading to the indictment, “there is a significant risk that the government misrepresented key issues of fact and law to the grand jury”; and that “the record suggests that an FBI agent who testified before the grand jury was potentially tainted by privileged communications between Mr. Comey and his attorneys.”
Keep in mind that even if the judge grants Comey’s disclosure motion, that wouldn’t automatically lead to the case’s dismissal. Rather, his lawyers would then review the grand jury proceedings and seek to harness them to make a more concrete argument in favor of dismissal.
(Comey’s litigation is further along than New York Attorney General Letitia James’ case because he was indicted first, but we could see her file a similar motion. The legal issues in their cases aren’t totally the same, but there is overlap.)
As with all of Comey’s (and James’) pending motions to dismiss, Halligan will be able to respond before a judge rules. I should note that the grand jury matter is just one of several legal claims at issue, any one of which could lead to the dismissal of the cases before trial. We’ll learn more in the weeks ahead how these cases are shaping up.
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