The United States Department of Justice has acknowledged that the grand jury reviewing the case against James Comey, a former director of the Federal Bureau of Investigation (FBI), did not receive a copy of the final indictment against him.
That revelation on Wednesday came as lawyers for Comey sought to have the indictment thrown out of court.
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At a 90-minute hearing in a federal court in Alexandria, Virginia, Comey’s lawyers argued that the case should be dismissed outright, not only for the prosecutorial missteps but also due to the interventions of President Donald Trump.
Comey is one of three prominent Trump critics to be indicted between late September and mid-October.
The hearing took place before US District Judge Michael Nachmanoff, and Comey’s defence team alleged that Trump was using the legal system as a tool for political retribution.
“This is an extraordinary case and it merits an extraordinary remedy,” defence lawyer Michael Dreeben said, calling the indictment “a blatant use of criminal justice to achieve political ends”.
The Justice Department, represented by prosecutor Tyler Lemons, maintained that the indictment met the legal threshold to be heard at trial.
But Lemons did admit, under questioning, that the grand jury that approved the indictment had not seen its final draft.
When Judge Nachmanoff asked Lemons if the grand jury had never seen the final version, the prosecutor conceded, “That is my understanding.”
It was the latest stumble in the Justice Department’s efforts to prosecute Comey for allegedly obstructing a congressional investigation and lying to senators while under oath.
Comey has pleaded not guilty to the two charges, and his defence team has led a multipronged effort to see the case nixed over its multiple irregularities.
Scrutiny over grand jury proceedings
Questions over the indictment — and what the grand jury had or had not seen — had been brewing since last week.
On November 13, US District Judge Cameron McGowan Currie raised questions about a span of time when it appeared that there appeared to be “no court reporter present” during the grand jury proceedings.
Then, on Tuesday, Magistrate Judge William Fitzpatrick took the extraordinary step of calling for the grand jury materials to be released to the Comey defence team, citing “a disturbing pattern of profound investigative missteps”.
They included misleading statements from prosecutors, the use of search warrants pertaining to a separate case, and the fact that the grand jury likely did not review the final i