Left: Lindsey Halligan, special assistant to the president, speaks with a reporter outside of the White House, Wednesday, Aug. 20, 2025, in Washington. (AP Photo/Jacquelyn Martin). Right: Former Director of the Federal Bureau of Investigation James Comey gestures while addressing a gathering at Harvard University's Institute of Politics' JFK Jr. Forum in Cambridge, Mass., Monday, Feb. 24, 2020. (AP Photo/Charles Krupa).
On Sept. 30, when I wrote for Law&Crime about why James Comey's lawyers should be happy after his indictment, I underestimated the weakness of the government's case against the former head of the FBI.
The indictment against Comey charges him with lying to and obstructing Congress during an appearance he made in September 2020 in front of the Senate Judiciary Committee. At the hearing, he was asked questions about whether he had authorized anyone at the FBI to serve as an anonymous source in newspaper articles about the Russian election interference investigation.
This past September, Erik Siebert, interim U.S. Attorney for the Eastern District of Virginia, was being pressured by the Trump administration to indict Comey. Seibert resisted, presumably because the U.S. ttorney's office felt the case lacked merit. He voiced concerns about the viability of the case and his office's memo declining prosecution.
On Sept. 19, Trump said he wanted Siebert "out." Siebert resigned later that day. The following day on social media, President Trump demanded Attorney General Pam Bondi appoint a replacement for Siebert and bring charges against Comey, New York Attorney General Letitia James, and Sen. Adam Schiff, D-Calif. Trump continued, "we can't delay any longer."
That social media post by the president was a gift — a gift that keeps on giving. As the Jeffrey Epstein scandal forced the president to capitulate to Congress on the release of the investigative files, Trump publicly asked Bondi to go after "Democrats" linked to Epstein.
Months ago, Bondi said there were no more criminal charges coming from the Epstein evidence.
Her response to Trump's post: "Thank you, Mr. President. SDNY U.S. Attorney Jay Clayton is one of the most capable and trusted prosecutors in the country, and I've asked him to take the lead. As with all matters, the Department will pursue this with urgency and integrity to deliver answers to the American people."
Comey's attorneys, as expected, have asked the federal judge overseeing the case to dismiss the charges against him because they were politically motivated, a vindictive prosecution against a political enemy of the president.
According to Politico, one of Comey's lawyers, Michael Dreeben, a former deputy solicitor general who has argued more than 100 cases before the U.S. Supreme Court, seized on Trump's post and Bondi's acquiescence.
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In a hearing this week, Dreeben spent an hour laying out why the court should conclude that the indictment against Comey was brought solely because of Trump's "personal animus" toward Comey.
To no one's surprise, Dreeben pointed to Bondi's recent kowtowing to Trump on yet another call for political retribution. "We have never before seen in this country a blatant use of criminal justice to achieve political ends," argued Dreeben.
How can things possibly get worse for the Comey prosecution? Well, let me tell you. When Trump fired Seibert, Lindsey Halligan was appointed interim U.S. attorney. With literally no experience in criminal law, Halligan was forced to seek a grand jury indictment before the statute of limitations on Comey's alleged crimes expired on Sept. 30, 2025.
Apparently, the novice prosecutor who was charged with getting an indictment against a former director of the FBI may have made some mistakes. First, during the hearing, Halligan allegedly misrepresented to the grand jury that Comey could not exercise his Fifth Amendment right to remain silent. I don't know if that is a fatal error, but anyone who has a television knows that suspects and defendants — real or written into a crime drama script — have "the right to remain silent."
The more interesting problem, one that Halligan admitted in court on Nov. 19, is that apparently not all grand jurors had an opportunity to review the two-count indictment, approved after the grand jury rejected one of the counts in the initial three-count indictment.
U.S. District Judge Michael Nachmanoff briefly asked Halligan to answer some questions. He told Halligan, "You're counsel of record. You can address the court," asking her to explain whether any grand jurors beyond the foreperson were present when the original indictment and a narrower substitute were presented to a magistrate judge.
"The foreperson and another grand juror was also present," Halligan said, apparently confirming that a significant majority of jurors did not see the second indictment.
According to Politico, the judge said he "just wanted to make sure" that the indictment had not been seen by the full grand jury. Again, Halligan confirmed that it had not.
The prosecution of Comey appears to be in serious jeopardy. Nachmanoff could rule as early as next week.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll (2010) was released by McFarland Publishing. He is a regular contributor to Law & Crime. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
This is an opinion piece. The views expressed in this article are those of just the author.
