The indictment surfaced shortly after former President Donald Trump publicly pressed Attorney General Pam Bondi to pursue charges against the ex-FBI chief, a longstanding political adversary. Interim U.S. Attorney Lindsey Halligan, appointed by Trump to lead the Eastern District of Virginia after her predecessor declined to seek an indictment, presented the case to the grand jury.
Questions About Prosecutorial Conduct
In his eight-page order, Judge Fitzpatrick cited multiple “genuine issues of misconduct” in the grand jury process. He noted that Halligan may have violated court directives and Comey’s Fourth Amendment rights, establishing what he called “a reasonable basis” for challenging the indictment’s validity.
The judge identified two statements Halligan reportedly made to the grand jury that “on their face appear to be fundamental misstatements of the law.” One remark implied that Comey did not possess a Fifth Amendment right to decline testimony at trial, a position Fitzpatrick labeled “a fundamental and highly prejudicial misstatement.”
Fitzpatrick also referenced concerns over privileged material. According to his order, the sole witness who appeared before the grand jury—an FBI agent—was advised moments before testifying that the investigative file could contain attorney-client-protected communications. The judge said this revelation further complicated the integrity of the proceedings.
Defense counsel had asked the court to compel disclosure of the grand jury record so they could move to dismiss the indictment, alleging procedural irregularities and violations of the Federal Rules of Criminal Procedure. Under Rule 6(e)(3)(E)(ii), a court may authorize disclosure “if a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” Fitzpatrick invoked that provision directly, underscoring the seriousness of the alleged misconduct.
Labeling the disclosure order “an extraordinary remedy,” Fitzpatrick nevertheless concluded it was necessary to “fully protect the rights of the accused.” He observed that the government’s actions—whether “purposeful, reckless, or negligent”—had cast doubt on the fairness of the charging process.
Next Steps in the Case
Comey has pleaded not guilty and denies any wrongdoing. His trial remains scheduled for January 5, though the timeline could shift if the indictment is set aside. Should the defense formally request dismissal upon reviewing the grand jury material, the court would decide whether to quash the charges or allow the case to proceed.
The Department of Justice has not yet indicated whether it will seek to limit or appeal the disclosure order. Halligan’s office did not respond to a request for comment on the judge’s findings.
Grand jury secrecy is a longstanding principle in U.S. criminal procedure, but courts may breach that veil under limited circumstances. The Federal Rules permit disclosure when needed “to avoid a possible injustice in another judicial proceeding.” Additional background on grand jury secrecy and exceptions can be found in official guidance from the Administrative Office of the U.S. Courts.
If the indictment is dismissed, prosecutors could attempt to present the case to a new grand jury, though they would likely face heightened scrutiny regarding the accuracy of legal instructions and the handling of potentially privileged evidence. Conversely, if the indictment stands, pre-trial litigation would likely focus on the admissibility of Comey’s 2020 testimony and the scope of any privileges invoked during the investigation.
For now, Judge Fitzpatrick’s order places the spotlight squarely on the Justice Department’s conduct in a politically charged prosecution that has drawn national attention since its inception.
Crédito da imagem: Cheriss May | NurPhoto | Getty Images
