The good news for the government is that the problem with its timeline associated with the Comey indictment appears resolved. The bad news is that resolution requires dismissal of the case for the quite simple reason that the grand jury never voted on the operative indictment.
The timeline problem is one I discussed in an article here two days ago. Halligan claims she had no dealings with the grand jury after presenting the case to it. However, she presented a three-count case that the grand jury no-billed because it rejected the first count. The government contends the grand jury then issued a two-count indictment. But how could it if Halligan never presented the grand jury with the two-count indictment? Two days ago a defense brief presented exactly that problem to the judge. The brief argued:
“the affidavit Ms. Halligan voluntarily presented raised significant concerns about whether the operative indictment was actually presented to the grand jury, and if so, by whom. The logical conclusion from Ms. Halligan’s declaration is that no one from the government presented a new indictment to the grand jury after it issued a no bill. Ms.Halligan’s declaration attests that she did not reappear before the grand jury upon learning of the grand jury’s vote to no bill the indictment.”
This morning in a hearing the government apparently conceded that is exactly what happened.
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NEWS: During a hearing in federal court in VA, prosecutors confirmed that the operative indictment in the case against James Comey was never shown to or voted on by the entire grand jury before it was presented in open court.
Defense counsel argued that’s a complete bar to further prosecution
— Anna Bower (@annabower.bsky.social) 2025-11-19T16:36:11.713Z
Apparently, when the original indictment was no-billed (in whole) because the jury rejected the first of three counts, Halligan rewrote it to omit the first count, including only the two counts the grand jury narrowly (by two votes) indicated it supported. However, Halligan never submitted this revised two-count indictment to the grand jury to consider and vote upon. The grand jury never even saw it. Halligan just presented her self edited indictment to the court as the grand jury’s indictment.
This is a clear violation of the 5th Amendment and I’ll just quote from the syllabus of the Supreme Court’s 1887 decision in Ex Parte Bain, which is rather on point.
The declaration of Article V of the Amendments to the Constitution, that "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury" is jurisdictional, and no court of the United states has authority to try a prisoner without indictment or presentment in such cases.
The indictment here referred to is the presentation to the proper court, under oath, by a grand jury, duly impaneled, of a charge describing an offense against the law for which the party charged may be punished.
When this indictment is filed with the court, no change can be made in the body of the instrument by order of the court or by the prosecuting attorney without a resubmission of the case to the grand jury. And the fact that the court may deem the change immaterial, as striking out of surplus words, makes no difference. The instrument, as thus changed, is no longer the indictment of the grand jury which presented it.
Upon an indictment so changed the court can proceed no farther . . . A trial on such indictment is void. There is nothing to try . . . indictments, being upon oath, cannot be amended.
The Constitution does not allow a prosecutor to wing it by editing a no-billed indictment into one she thinks the grand jury would have passed. Certainly, the prosecutor can prepare such an indictment, and submit it afresh for the grand jury to consider, but Halligan didn’t do that.
Folks, on this alone the case must be dismissed. It’s over.
As to how even Halligan can fail to realize that she is way over her head I will never understand. If the system works properly:
1. The case should be dismissed.
2. Halligan should be compelled to resign.
3. Halligan should be referred to her state Bar for disciplinary actions for which she is fully deserving.
UPDATE
In a reflection of the seriousness of the problem the judge has ordered the DOJ to address Halligan’s failure to secure a grand jury vote on the actual indictment by 5 pm today.
