Justice Department insists Comey indictment was properly approved as it tries to keep case afloat

The new court filing, supplemented by a transcript from the September evening the indictment was returned, is meant to undo any public perception that the grand jury presentation was botched and that the case may be jeopardized as a result. It was not clear why some of the points in Thursday's filing were not raised during Wednesday's hearing, when prosecutors made clear that the full grand jury did not see the indictment filed in the case.

Either way, the dueling accounts underscore the irregular nature of the prosecution against one of President Donald Trump's political opponents and lay bare the consequences of the Justice Department's decision to entrust such a consequential case to a lawyer who had no prior experience as a prosecutor and was appointed to the job days before the indictment. Halligan replaced an experienced prosecutor who resigned amid Trump administration pressure to indict Comey and another Trump foe, New York Attorney General Letitia James, who has also since been charged by Halligan.

The issue stems from the fact that the Justice Department initially sought a three-count indictment of Comey. The grand jury rejected one of the counts but approved two others accusing Comey of making a false statement and obstructing Congress. Prosecutors then placed the two remaining charges in a revised indictment but said in court Wednesday that the full grand jury did not see the final charging document.

“Let me be clear that the second indictment, the operative indictment in this case that Mr. Comey faces, is a document that was never shown to the entire grand jury or presented in the grand jury room; is that correct?” U.S. District Judge Michael Nachmanoff asked at one point.

“Standing here in front of you, Your Honor, yes, that is my understanding,” replied Tyler Lemons, a prosecutor on the case. “I was not there, but that is my understanding, yes, Your Honor.”

Halligan, who was summoned to the lectern, told Nachmanoff in court Wednesday that only the grand jury foreperson and another grand juror were present for the second indictment. In a court filing later that evening, the Justice Department said the grand jury coordinator had returned to the grand jury room and presented the corrected indictment to the grand jury foreperson and the deputy foreperson.

On Thursday, in a five-page court filing titled “Government's Notice Correcting the Record,” Halligan sought to downplay any problem with the presentation, describing the situation as a “clerical inconsistency” and insisting it was not the case that the full grand jury never voted on the second indictment.

The filing included a transcript of a conversation involving Halligan, the grand jury foreperson and the magistrate judge who was overseeing the return of the indictment.

“So you voted on the one that has the two counts?” the judge asked at one point, according to the transcript.

“Yes,” replied the foreperson.