The Jim Comey Case Gets Crazier by the Day (Original Post Title: Why Getting Grand Jury Materials Is Nearly Impossible)

By Sara Kropf

A week ago, I wrote about the request by the defense team in the Jim Comey case for the grand jury materials. That post is below. But in the last few days some truly bats*$t crazy things have been happening and I could not leave my readers to wonder about my take.

So here is a quick update as of today, November 19:

1. The grand jury no billed (meaning, did not vote to indict) one of of the three counts presented to it.
2. There is an indictment for the remaining two counts but DOJ was forced to admit revealed in a hearing on November 19 that the operative two-count indictment was never shown to (“presented”) the grand jury for a vote.
3. Suffice to say, it is not appropriate to say someone is “indicted” when the grand jury did not actually see or vote on the indictment.
4. My head just exploded.
5. The indictment was obtained after the testimony of a single FBI agent. This itself is not unusual. But that agent may have seen materials that were covered by the attorney-client privilege. This means the agent is “tainted” and should not have been part of the prosecutorial team. This may or may not be a reason to dismiss the indictment but it is a completely avoidable problem.
6. Inexperienced U.S. Attorney Lindsey Halligan gave the grand jury a misleading statement of Fifth Amendment law. The quote is currently redacted but it is likely something where she commented on the fact that Mr. Comey chose not to appear to testify–which is not only allowed but is not something a prosecutor may ever comment upon. This impropriety could lead to dismissal of the indictment.
7. My head just exploded a second time.
8. According to the NY Times, “At another point, one of Ms. Halligan’s subordinates, Tyler Lemons, acknowledged that someone in the deputy attorney general’s office had instructed him not to discuss whether his predecessors had written a memo laying out their reasons for not bringing charges. In the end, Mr. Lemons, appearing unnerved under questioning, confessed that the prosecutors who had previously handled the case had indeed written a draft of a memo declining prosecution.”
9. Sigh. I have no more heads to explode.

It’s impossible for me to describe how many problems this process had. When you add the defective process to the fact that that there is no question that this prosecution was politically motivated, it’s impossible to imagine that the judge will do anything other than dismiss the indictment.

Yes, I’m calling it. Judge Nachmanoff will dismiss the indictment within the week. And my guess is that DOJ doesn’t appeal it.

Bigger picture: This case shows just how important it is–especially now–for the defense to obtain all grand jury materials as part of discovery in every case. There is far too much deference to prosecutors in a secret proceeding. This case shows how that deference can be used to violate due process in many different ways.

This is unconscionable conduct by DOJ.

*****

ORIGINAL POST FROM NOVEMBER 12

One of the most frustrating aspects of a white-collar criminal practice is the near-impossibility of getting your hands on grand jury materials to challenge the indictment. A recent motion in the criminal case against former FBI Director James Comey provides a window into just how difficult this battle can be—even when you’re representing someone who has legitimate reasons to believe the grand jury process might have been compromised.

A. The Narrow Exception to Grand Jury Secrecy

Grand jury secrecy is a key part of the criminal justice system and doesn’t often give way to a defendant’s right to investigate the case. Rule 6(e) of the Federal Rules of Criminal Procedure creates a fortress around grand jury proceedings.

There are, however, a few situations in which a defendant is entitled to grand jury testimony. The defendant will get that testimony only if it is exculpatory under Brady or if the government calls one of those witnesses at trial under Jencks. It’s not often that a prosecutor elicits exculpatory material from a witness during grand jury testimony, so Brady is rarely the trigger for disclosure. And the government can usually pick a different witness for trial than the one who testified before the grand jury. In the end, there is a good chance the defense never sees any part of the grand jury proceedings or only sees a small portion of them.

Rule 6(e)(3)(E)(ii) provides that a court may order the disclosure of grand jury materials “at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” The defendant must show a “particularized need” for the materials.

This means that the defense needs to demonstrate specific reasons why the materials are necessary for the defense and why it can’t get the information through other means. Courts are understandably reluctant to second-guess grand jury proceedings absent truly extraordinary circumstances. There is a frustratingly circular element to this type of motion: you need the grand jury materials to prove something was wrong with the grand jury, but you can’t get the materials without proving something was wrong.

This is where the rubber meets the road, and where most defense motions crash into a brick wall. The government will argue—and courts will often agree—that Jencks and Brady disclosures are sufficient. Grand jury transcripts? Those are for the government’s eyes only, thank you very much.

B. The Comey Case: A Unique Set of Facts

Now, let’s dive into what makes the Comey motion particularly interesting. Comey has made credible allegations about potential political interference in the grand jury process itself. The defense isn’t just fishing—it’s arguing that the grand jury may have been exposed to prejudicial information or influenced by political considerations that would undermine the integrity of the indictment.

The indictment is not a strong one and the interim U.S. Attorney who handled the grand jury, Lindsey Halligan, had never appeared before a grand jury and did not have a more experienced prosecutor with her. She may have made procedural errors that could create some daylight for Comey here. As the motion’s opening paragraph says:

The indictment at issue—which facially misstates Mr. Comey’s testimony—was sought by an inexperienced prosecutor and returned after business hours with a meager 14 votes after an earlier no true bill. Those facts, in combination with signs of other potential misconduct, indicate that a ground may exist to dismiss the indictment. Accordingly, disclosure of the grand jury proceedings is warranted.

The Fifth Amendment guarantees indictment by an impartial grand jury, and if that grand jury was given false testimony or if the answers to any grand jurors’ questions were incorrect, then that can lead to a serious challenge to the indictment.

C. The Magistrate Judge Orders Disclosure (and Later Developments)

Comey filed his motion for disclosure of grand jury materials on October 30. But then on November 5, the magistrate judge who was handling privilege matters, ordered

that the Government shall, no later than 5:00 p.m. on Thursday, November 6, 2025, file on the docket, under seal, all documents relating to the September 25, 2025 grand jury proceedings, including complete audio recordings and transcripts reflecting (i) all testimony presented to the grand jury and (ii) any statements made by any prosecutor, law enforcement officer, or witness to the grand jury, or in the presence of the grand jury.

The day after the magistrate judge’s order, the government appealed that order to the district court judge. It argues that “the order exceeds the scope of the Magistrate Judge’s delegated authority” and that the defendant had not shown “particularized and factually based grounds exist for disclosure and that the need for disclosure outweighs the long-established public interest in grand jury secrecy.”

The district court judge remanded the matter to the magistrate to make particularized findings, and the magistrate judge ordered the government to turn over the material for an in camera review. The magistrate judge is also allowing the defense to file an ex parte submission explaining what he should be looking for in the grand jury materials. (I cannot see the transcript so it’s not 100% clear what topics will be covered in the ex parte filing.)

This was all a good sign for the defense at the time. And in retrospect, it was absolutely critical to permit Mr. Comey to challenge the defective grand jury process.