Former FBI Director James Comey has urged a federal judge to dismiss his case without a trial over “fundamental errors” in the grand jury process that resulted in his indictment.
In a 29-page motion Friday, his attorneys argued that the errors — spanning a procedural misstep in dispute to alleged government misconduct — reflect the “recklessness and ill-conceived nature” of the prosecution against one of President Trump’s foremost foes.
“Those grand jury errors warrant dismissal twice over,” they wrote.
Comey has pleaded not guilty to false statements and obstruction charges stemming from 2020 testimony he gave Congress. He was indicted in September, just days before the five-year statute of limitations on the counts was set to expire.
But after prosecutors conceded at a hearing Wednesday that the full grand jury did not review the final indictment against Comey, his attorneys now assert that no actual indictment was brought within the statute of limitations on the two charged crimes.
The final indictment omitted one of three counts initially sought by Lindsey Halligan, the U.S. attorney hand-picked by Trump to pursue the case, which grand jurors rejected.
“Here, the grand jury voted to reject the only indictment that the government presented to it,” Comey’s attorneys contended. “Instead of presenting the grand jury with a revised indictment, Ms. Halligan signed a new two-count indictment that the grand jury had never seen or voted on.
“Because at least 12 jurors did not ‘approve the actual indictment,’ there is no valid indictment of Mr. Comey.”
The Department of Justice sought to walk back the admission Thursday, suggesting that a full grand jury did, in fact, review the charging papers.
In a notice “correcting the record,” prosecutors said, “any assertion that the grand jury ‘never voted on the two-count indictment,’ is contradicted by the official transcript.” They called the error a “clerical inconsistency” relating only to the nixed first count and insisted the indictment is valid.
The correction “cannot save” the indictment, Comey’s attorneys argued. They said it contradicts other representations the government has made to the court and rests on an “erroneous overreading of an ambiguous exchange” between the grand jury foreperson and the magistrate judge.
Even if the full grand jury was presented with the final indictment, a “host of additional problems” for the government would emerge, they said, beginning with the apparent absence of a recording of the presentation.
Comey’s attorneys alleged government misconduct as another reason to throw out the case.
A magistrate judge in Comey’s case Monday granted the defense’s request for access to typically secret grand jury material after finding a “disturbing pattern of profound investigative missteps” in the record.
The ruling is paused until U.S. District Judge Michael Nachmanoff weighs in.
“As Mr. Comey has explained, the government’s misconduct before the grand jury leaves at least grave doubt about whether the grand jury’s decision was tainted by that misconduct,” Comey’s attorneys said, noting the decision to indict was reached by a narrow margin and after lengthy deliberations.
They added that the former FBI director reserves his right to supplement the motion if the grand jury materials are ultimately disclosed to the defense.
The motion adds to a pile of other efforts by Comey to dismiss his charges, from challenging Halligan’s appointment as the district’s top prosecutor to being targeted by a selective and vindictive prosecution.
Judges have heard arguments on two of the motions, with U.S. District Judge Cameron Currie expected to rule on Halligan’s appointment by Thanksgiving.
Updated at 6:22 p.m. EST