So let's review the full set of facts relating to the indictment of former FBI Director James Comey. I apologize in advance for the length of the post.
- In his first term Trump appoints a special prosecutor (Horowitz) to indict Comey (and others). Horowitz declines to do so on grounds there is insufficient evidence.
- So Trump appoints a second special prosecutor (Durham) to indict Comey. Duham declines for the same reason. Durham does bring charges two against two Clinton aides (Michael Sussman and Igor Danchenko) and suffers the humiliation of both being acquitted by their respective juries at trial.
- In his second term Trump appoints the United States Attorney for the Eastern District of Virginia (Erik Seibert) to indict Comey. Seibert declines to indict Comey due to lack of evidence.
- Trump fires Seibert, directly stating the reason is for not indicting people Trump wants indicted, including Comey. Trump replaces Seibert with Lindsey Halligan, an insurance lawyer who has zero prosecutorial experience.
- Upon arriving to work Halligan receives a memo from the DOJ lawyers who have been working on the case detailing why the facts do not support a criminal indictment of Comey and why they would be unlikely to prevail at trial if he was indicted. However, Trump continues to publicly demand indictments.
- Halligan overrules the recommendations of her staff and brings the case to a grand jury seeking indicment on three counts.
- The grand jury, in a highly unusual repudiation, no bills (rejects) one of the three counts. However, in a close vote 14 of 23 grand jurors find the evidence meets the low standard of "probable cause" to support an indictment. This close vote at the grand jury would give a prudent prosecutor pause for reasons I shall discuss.
At the grand jury everything is stacked in favor of the prosecution. The prosecution presents its case. There is no defense counsel even in the room to present the defense case. There is no cross examination of the witnesses. The prosecution benefits from reduced evidentiary standards that includes allowing hearsay. In fact, the Supreme Court has ruled that a grand jury indictment based entirely on hearsay evidence is permissible. The standard of proof is the much lower probable cause, not beyond reasonable doubt. Finally, only a majority grand jury vote (12 of up to 23) is required to indict.
I trust you can begin to see why grand juries rejecting cases/charges is exceptionally rare. A fair minded, objective prosecutor, would be very concerned that their case can prevail at trial when an indictment is secured only by a thin majority vote.
- At trial the prosecutor must secure a unanimous vote to convict at the much higher standard of proof of beyond reasonable doubt. Competent defense counsel will repeatedly emphasize to the jury how very high that standard is.
- The prosecutor must deal with a vigorous defense counsel who will zealously cross examine all the prosecutions witnesses seeking to undermine the weight of their testimony. Further, the defense is given an opportunity to call its own witnesses to potentially present evidence of innocence, witnesses the grand jury would never have heard.
- The prosecutor must make its beyond reasonable doubt case under rigid Federal Rules of Evidence, which generally bars the hearsay that was admissible before a grand jury.
- Only the judge vets the grand jury. The defense counsel is fully involved in rigorously vetting the trial jury through the voir dire process.
- Finally, the prosecutor must do all this having fully disclosed its case to the defense under the "Brady Rule."
For these reasons a thin win at the grand jury is a likely defeat at trial. Anything like an experienced prosecutor would understand that. However, Lindsey Halligan is nothing like an experienced prosecutor.
The record shows the prosecution was not brought on the merits of the case. Proving malicious/vindictive/selective prosecution to dismiss a case is normally exceptionally difficult. One reason it is so difficult is a normally powerful “presumption of regularity” gives the government a strong presumption that it acted in good faith and that the regular processes for securing such indictments were followed. However, the presumption of regularity is rebuttable and the record in this case demonstrates a highly irregular process, steeped in political interference, and with political retribution openly stated as a determinative factor of the prosecution.
Further, as I have been telling anyone who will listen (see links below), the presumption of regularity is declining to government misconduct and deceptions in numerous cases, particularly immigration cases.
As for the indictment both counts, false statements and obstruction of justice, relate to a claim of a single alleged false statement to Congress. The indictment does not even say (as in by quoting) what the specific alleged false statement was. Rather it more generally states that Comey denied authorizing someone else at the FBI to be an anonymous source for information leaked regarding an FBI investigation. What that information was is not even specifically stated. The indictment claims Comey had in fact authorized “Person 3” to leak the information.
The anonymous “Person 3” is likely the aforementioned, as acquitted, Andrew McCabe. McCabe has testified he decided to leak the information on his own, and that he doesn’t recall Comey authorizing it before hand. McCabe does recall informing Comey after the leak was published, that he (McCabe) leaked it and that Comey acquiesced to the leak. But post hoc acquiescing to an already published leak is not authorizing the leak in advance.
For this indictment, with all its history, to hinge all its counts on a single alleged misstatement to Congress is weak sauce for a jury trial to begin with. For it to do so based on conflicting evidence presents an almost hopeless case at trial. You can see why the more responsible prosecutors didn’t seek indictments in this case.
Prior Articles By Me Relating To The Decline Of The Presumption of Regularity.
Trump Orders Prosecution of Political Enemies, And Undermines Their Prosecution.
Trump Appointed Judge Calls Out Regime In Guatemalan Children Case, In Another Blow To Regularity.
Sham, Fabrication, Chicanery: A Bad Day For DOJ Attorneys As Judge Orders Trump Regime To Eat Crow
An Unheard Of Hat Trick Of No Bills From Grand Juries Against The Trump Regime
Judge States Either Trump's DOJ Is Lying Or El Salvador Is Lying
"I Didn't Sign Up To Lie." His Last Words As A Trump Regime Lawyer
The Mayor Strikes Back: Baraka Sues Habba For False Arrest And Malicious Prosecution
Kash Patel Undermines His Big Case Against Wisconsin Judge.
Reagan Appointee Destroys Trump's Treatment Of Abrego Garcia.
Trump Claims Not To Have Signed Alien Enemies Act Deportation Document. So Who Did?
