“Regarding the James Comey case, I understand that the grand jury is a prosecutorial tool. What is to stop the prosecutor from presenting false evidence or lying? Is there any way to know if prosecutor Lindsey Halligan did this, since grand jury testimony usually is sealed?”
— Mary
Hi Mary,
Yes, there is a way.
We got a glimpse this week of the arguments that Comey will raise against his charges. At the former FBI director’s arraignment Wednesday, his lawyer Pat Fitzgerald listed several claims they might press, including what he called “grand jury abuse.”
The precise basis for that claim should become clearer when the defense files motions to dismiss later this month. At the arraignment, Fitzgerald said they intend to file two sets of motions. The first, set to come Oct. 20, will challenge the legality of Halligan’s appointment and argue that the charges are vindictive and selective. The second, set to come Oct. 30, is where we could see that grand jury-related claim, as well as other separate arguments (Fitzgerald said he wasn’t exactly sure what everything in the second round of motions will entail).
As you note, grand jury proceedings are generally secret. But there are exceptions. Potentially relevant here is a procedural rule that says courts can authorize disclosure “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.” Judges have warned against invoking that rule as a “fishing expedition” to search for abuse. Therefore, if Comey’s lawyers do invoke that rule, then they will need to specify grounds for doing so. Of course, that raises the question of how a defendant could know what’s there unless they look; but as Comey understands well as a former prosecutor himself, the law is filled with such hurdles. Yet, as with other aspects of this case, like the vindictive prosecution claim that Comey will raise, the Trump administration has given the defense some material to work with in mounting challenges that rarely succeed under normal circumstances. And if Fitzgerald’s reference to “grand jury abuse” includes a different type of argument, or multiple arguments under that general heading of abuse, then we should see all of that in the defense motions due Oct. 30. But the bottom line is that the grand jury process will be among the several areas that the defense is exploring in seeking to dismiss the indictment pretrial — and there is precedent for such exploration. Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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