On Friday afternoon, cosplay US Attorney Lindsey Halligan defended her A-plus prosecuting chops.
“There are no missing minutes, contrary to the suggestion raised by the court,” she huffed, insisting that there was definitely no gap in the record of her presentation to the grand jury that indicted Jim Comey.
Halligan was so indignant that she docketed three filings attesting to her fitness — twice.
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Or perhaps she did it to correct this embarrassing typo in the first batch.
Simply stated, inability to proofread is the least of the problems here. Halligan’s appointment as US Attorney for the Eastern District of Virginia was almost certainly illegal. And even if Halligan was legally appointed, her own incompetence and missteps might well doom this case anyway.
Mind the gap
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Initially Halligan tried to secure a three-count indictment charging the former FBI director with: 1) false statements under questioning by Senator Lindsey Graham; 2) false statements under questioning by Senator Ted Cruz; and 3) obstruction of Congress. The jurors rejected the first charge, but indicted on the second and third. And then things went totally sideways.
As Empty Wheel’s Marcy Wheeler notes, there are at least three signed versions of the Comey indictment. The first contains three counts, labeled Count 1, Count 2, and Count 2. The second labels them as Counts 1, 2, and 3. And the third correctly states that the jury returned charges on just two counts.
Judge Cameron McGowan Currie, who was seconded from South Carolina to hear the disqualification motion, signaled that something went awry when either Halligan or her first assistant Maggie Cleary was negotiating to get a clean “true bill.” After first ordering the government to produce the grand jury record on October 28, the judge issued a second order calling the prior production incomplete and directing Halligan to produce everything, including “statements made prior to and after the testimony of the witness and during the presentation of the three-count and subsequent two-count indictments.”
At the hearing on Thursday, she suggested that the record still contained a 139-minute gap. According to Politico, “Currie said that it appeared at about 4:28 p.m. on the day the indictment was returned in September, there was no court reporter in the room to transcribe the proceedings, leaving no record of the final minutes of the grand jury’s session.”
Many observers interpreted this as indicating that Halligan presented the case without a court reporter present — an almost insane level of incompetence (or malice). The DOJ rushed out a statement denying it, and on Friday, Halligan docketed a declaration insisting that “the period in question consisted solely of the grand jury’s private deliberations, during which no prosecutor, court reporter, or other person may be present pursuant to Rule 6(d) of the Federal Rules of Criminal Procedure.”
She says she concluded her presentment at 4:28pm and then wandered off to do very serious prosecutor stuff until:
Approximately two hours later, at 06:40 PM, I was notified by then-First Assistant United States Attorney Maggie Cleary that the grand jury had returned a true bill as to the presented Count Two and Count Three of the indictment and that the grand jury had not returned a true bill as to the presented Count One. I then proceeded to the courtroom for the return of the indictment in front of the magistrate judge.
Good to know that she took the court reporter in there for her case in chief! And yet … this does not explain how she came to have three signed copies of the same indictment.
There are a lot of ways that this could have gone down, but that’s not one of ‘em. Some sort of way, someone went back to the jury foreperson and got another signature.
Here’s how the Washington Post said it happened:
[Halligan] and First Assistant U.S. Attorney Mary M. “Maggie” Cleary were in the Alexandria courtroom when the indictment was delivered to U.S. Magistrate Judge Lindsey R. Vaala on Thursday evening. […] The grand jury foreperson told Vaala that the panel had rejected one of three counts in the originally submitted indictment. Prosecutors then presented a revised indictment, the foreperson said, containing only the two counts that the grand jury had agreed on and with which Comey was eventually charged.
The judge received both indictments Thursday evening and noted she was puzzled by the outcome.
“This has never happened before. I’ve been handed two documents … with a discrepancy,” Vaala said. “I’m a little confused why I was handed two things … that were inconsistent.”
Halligan said at the lectern she hadn’t seen the first indictment that was rejected, but Vaala noted Halligan appeared to have signed that original document. [Emphasis added.]
In her declaration, Halligan insists that “During the intermediary time, between concluding my presentation and being notified of the grand jury’s return, I had no interaction whatsoever with any members of the grand jury.” That might well be true. And it might also be true that “At every moment I was in front of the grand jury, the court reporter was also present.”
But that still leaves a hole in the record, and that hole has other implications for the case.
Lipstick on a pig
Judge Currie was assigned from South Carolina to hear the motion to dismiss based on Halligan’s unlawful appointment as US Attorney for the Eastern District of Virginia. During his second term, Trump has largely ignored his statutory and constitutional obligation to get Senate approval for US Attorneys. Instead, Bondi does a sort of three-hat dance to ensure that Trump’s preferred prosecutors can exercise the power of the office past the 120-day interim term set out in 28 USC § 546.
First she appoints the crony under § 546; then she purports to make the crony their own first assistant, so that they are automatically promoted to acting US Attorney when the 120 days expires; and then for good measure, she designates the crony as a special counsel under 28 USC § 515.
Bondi’s relied on this gambit since July, when she first used it for John Sarcone, III in the Northern District of New York. And even when courts ruled that the crony can’t hold the position of US Attorney, the office’s prosecutions have survived. But for whatever reason, on September 22 Bondi appointed Halligan based on § 546 alone. And she’s been trying to undo the damage ever since.
On Halloween, Bondi attempted to clean up the mess by ratifying the indictment and retroactively installing Halligan as special attorney under § 515 as of September 22. Trick or treat!
There are several problems with this stratagem. First of all, that’s not how linear time works, Pam! Second, by this logic, any rando off the street could present a case to a grand jury — which is more or less what happened here — and it would be fine as long as the AG blessed it after the fact. Why bother to nominate a US attorney at all?
At Thursday’s hearing last week, Judge Currie suggested Bondi could not have ratified the indictment (or indictments) on October 31 because she hadn’t seen the full presentment to the grand jury.
“It became obvious to me that the attorney general could not have reviewed those portions of the transcript presented by Ms. Halligan,” the judge said, according to Politico.
By the government’s own admission the DOJ did not request a transcript of the “entire recording” until after being ordered to do so in Judge Currie’s second order on November 4. And so, on Friday Bondi submitted yet another declaration purporting to re-ratify the indictment based on a review of the “full” record.
“For the avoidance of doubt, I have reviewed the entirety of the record now available to the government and confirm my knowledge of the material facts associated with the grand jury proceedings,” she wrote “Based on that knowledge, I hereby exercise the authority vested in the Attorney General by law, including 28 U.S.C. § 509, 510, and 518(b), to ratify Ms. Halligan’s actions before the grand jury and her signature on the indictment returned by the grand jury.”
Which is all well and good if the court accepts that the attorney general can ratify an illegally obtained indictment post facto. And that she can retroactively appoint someone as a special counsel. And that there really are no more “gaps” in the record.
If not … this indictment is DOA.
Oh, and PS, Cleary was fired two weeks later. Prolly just a coincidence, right?
Aaaaaaand right on time, Magistrate Judge Fitzpatrick ordered the government to release the grand jury transcripts to Comey based on a mere 11 independent grounds.
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