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WASHINGTON — A federal grand jury properly voted on the indictment of ex-FBI boss James Comey in September after prosecutors mistakenly told a judge that not all jurors saw the final version of the charges, according to a new court transcript.
Interim US Attorney Lindsey Halligan submitted the transcript the day after a tense hearing in Alexandria, Va., on Wednesday, during which she had indicated only “the foreperson and another grand juror” handed up the indictment to US Magistrate Judge Lindsey Vaala.
But a court filing from the US Attorney’s Office in the Eastern District of Virginia on Thursday noted the transcript of the Sept. 25 proceeding before Vaala “conclusively refutes” that there was an issue with the process “and establishes that the grand jury voted on — and true-billed — the two-count indictment.”
“[A]ny assertion that the grand jury ‘never voted on the two-count indictment’ is contradicted by the official transcript,” Halligan’s team responded in the new court papers — directly contradicting claims from Comey’s defense team in court that the charges were void.
On Sept. 25, the grand jury voted on three counts against the former FBI Director — two for making false statements to Congress and one charge for obstructing justice — but one of the false statements charges wasn’t returned by a majority of the 23-member panel.
“It was the very first count that we did not agree on,” the grand jury foreperson told Vaala, per the transcript, “and the Count Two and Three were then put in a different package, which we agreed on.”
A clerical error caused by the redrafting of the indictment also briefly confused the magistrate judge’s understanding of what had occurred during the grand jury’s deliberations, but it was quickly resolved.
“So you voted on the one that has two counts?” Vaala asked.
“Yes,” the jury foreperson affirmed.
Halligan and Assistant US Attorneys Tyler Lemons and Gabriel Diaz in Thursday’s filing wrote that the transcript “confirms the Court’s recognition that the two-count true bill is the valid, operative indictment.”
“The complete record eliminates any doubt: The foreperson confirmed the vote. The Court acknowledged the vote. The Court docketed the two-count true bill as the operative indictment. Only Count One lacked concurrence; Counts Two and Three were true-billed by at least twelve jurors,” the prosecutors said.
US District Judge Michael Nachmanoff had pressed Lemons toward the end of Wednesday’s 90-minute hearing about whether jurors were never presented with the final indictment.
Lemons, who had not yet joined the prosecutorial team at the time of the indictment, suggested that not all jurors had seen the two-count version and Halligan said only two were present when it was given to the judge.
Comey’s defense attorney Michael Dreeben responded that, as a result, “no indictment was returned” before the statute of limitations expired on Sept. 30.
Some former federal prosecutors claimed the misstep could be fatal to Halligan’s case, while others denied that there was an issue with redrafting the indictment after one of the counts failed — so long as the wording was identical to what jurors voted on and it was returned by the foreperson.
“The confusion arises solely from the magistrate judge’s misinterpretation of the administrative correction removing Count One from the indictment after the grand jury returned a true bill on Counts Two and Three,” prosecutors also wrote in a Wednesday court filing.
“That adjustment simply reflected the grand jury’s vote; it was neither unusual nor improper.”
Exactly five years prior, Comey had testified in a Senate Judiciary Committee hearing that he had never authorized leaks to the media about high-profile FBI investigations — in statements reaffirming May 2017 congressional testimony while he was still serving as bureau director.
The prominent Trump critic oversaw both the bureau’s Crossfire Hurricane probe of alleged collusion between Trump’s 2016 campaign and the Russian government, as well as the “Midyear Exam” investigation into Democratic candidate Hillary Clinton’s use of a private email server to view classified information.
Much of Wednesday’s hearing focused on the defense’s arguments to dismiss the case due to it being an allegedly selective and vindictive prosecution brought by Halligan at the behest of President Trump.
Dreeben claimed that the president viewed Comey as a political enemy and had a history of retaliating against the former FBI director for exercising his free speech rights. Due to that “pattern,” the indictment should be properly seen as “a political prosecution,” he noted.
Nachmanoff asked the defense attorney whether he then viewed Halligan as nothing more than a “puppet” of the president, but Dreeben resisted agreeing with that characterization by the judge.
Lemons also rejected the notion, claiming the US attorney “was not directed to seek this prosecution.”
Halligan lashed out after the hearing in a statement to The Post that Nachmanoff’s choice of words amounted to a “personal attack.”
“The Judicial Canons require judges to be ‘patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity’ … and to ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,’” she said.
“My focus remains on the record and the law, and I will continue to fulfill my responsibilities with professionalism.”
Other motions from Comey’s lawyers have tried to have the case thrown out by claiming the US attorney was unlawfully appointed. They’ve also sought access to grand jury materials from the feds, the latter of which was recently ruled upon by US Magistrate Judge William Fitzpatrick in the defense’s favor.
Nachmanoff, who has yet to issue a ruling on the motion to dismiss the case based on it being a vindictive prosecution, also paused that order from Fitzpatrick pending a complete review of prosecutors’ arguments seeking to overturn it, stemming largely from privilege concerns expressed by the Department of Justice.
Comey is scheduled to head to trial on Jan. 5, 2026, and faces up to five years in prison if convicted on both counts.
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