On Friday afternoon, cosplay US Legal professional Lindsey Halligan defended her A-plus prosecuting chops.
“There aren’t any lacking minutes, opposite to the suggestion raised by the court docket,” she huffed, insisting that there was undoubtedly no hole within the report of her presentation to the grand jury that indicted Jim Comey.
Halligan was so indignant that she docketed three filings testifying to her health — twice.
Or maybe she did it to appropriate this embarrassing typo within the first batch.
Merely said, incapability to proofread is the least of the issues right here. Halligan’s appointment as US Legal professional for the Japanese District of Virginia was nearly definitely unlawful. And even when Halligan was legally appointed, her personal incompetence and missteps would possibly properly doom this case anyway.
Thoughts the hole
Initially Halligan tried to safe a three-count indictment charging the previous FBI director with: 1) false statements beneath questioning by Senator Lindsey Graham; 2) false statements beneath questioning by Senator Ted Cruz; and three) obstruction of Congress. The jurors rejected the primary cost, however indicted on the second and third. After which issues went completely sideways.
As Empty Wheel’s Marcy Wheeler notes, there are no less than three signed variations of the Comey indictment. The first comprises three counts, labeled Rely 1, Rely 2, and Rely 2. The second labels them as Counts 1, 2, and three. And the third accurately states that the jury returned expenses on simply two counts.
Decide Cameron McGowan Currie, who was seconded from South Carolina to listen to the disqualification movement, signaled that one thing went awry when both Halligan or her first assistant Maggie Cleary was negotiating to get a clear “true invoice.” After first ordering the federal government to supply the grand jury report on October 28, the choose issued a second order calling the prior manufacturing incomplete and directing Halligan to supply all the pieces, together with “statements made previous to and after the testimony of the witness and through the presentation of the three-count and subsequent two-count indictments.”
On the listening to on Thursday, she prompt that the report nonetheless contained a 139-minute hole. In accordance with Politico, “Currie stated that it appeared at about 4:28 p.m. on the day the indictment was returned in September, there was no court docket reporter within the room to transcribe the proceedings, leaving no report of the ultimate minutes of the grand jury’s session.”
Many observers interpreted this as indicating that Halligan offered the case with no court docket reporter current — an nearly insane stage of incompetence (or malice). The DOJ rushed out a press release denying it, and on Friday, Halligan docketed a declaration insisting that “the interval in query consisted solely of the grand jury’s personal deliberations, throughout which no prosecutor, court docket reporter, or different particular person could also be current pursuant to Rule 6(d) of the Federal Guidelines of Felony Process.”
She says she concluded her presentment at 4:28pm after which wandered off to do very severe prosecutor stuff till:
Roughly two hours later, at 06:40 PM, I used to be notified by then-First Assistant United States Legal professional Maggie Cleary that the grand jury had returned a real invoice as to the offered Rely Two and Rely Three of the indictment and that the grand jury had not returned a real invoice as to the offered Rely One. I then proceeded to the courtroom for the return of the indictment in entrance of the Justice of the Peace choose.
Good to know that she took the court docket reporter in there for her case in chief! And but … this doesn’t clarify how she got here to have three signed copies of the identical indictment.
There are plenty of ways in which this might have gone down, however that’s not considered one of ‘em. Some kind of manner, somebody went again to the jury foreperson and bought one other signature.
Right here’s how the Washington Submit stated it occurred:
[Halligan] and First Assistant U.S. Legal professional Mary M. “Maggie” Cleary have been within the Alexandria courtroom when the indictment was delivered to U.S. Justice of the Peace Decide Lindsey R. Vaala on Thursday night. […] The grand jury foreperson informed Vaala that the panel had rejected considered one of three counts within the initially submitted indictment. Prosecutors then offered a revised indictment, the foreperson stated, containing solely the 2 counts that the grand jury had agreed on and with which Comey was finally charged.
The choose acquired each indictments Thursday night and famous she was puzzled by the result.
“This has by no means occurred earlier than. I’ve been handed two paperwork … with a discrepancy,” Vaala stated. “I’m just a little confused why I used to be handed two issues … that have been inconsistent.”
Halligan stated on the lectern she hadn’t seen the primary indictment that was rejected, however Vaala famous Halligan appeared to have signed that authentic doc. [Emphasis added.]
In her declaration, Halligan insists that “Throughout the middleman time, between concluding my presentation and being notified of the grand jury’s return, I had no interplay in any respect with any members of the grand jury.” Which may properly be true. And it may additionally be true that “At each second I used to be in entrance of the grand jury, the court docket reporter was additionally current.”
However that also leaves a gap within the report, and that gap has different implications for the case.
Lipstick on a pig
Decide Currie was assigned from South Carolina to listen to the movement to dismiss primarily based on Halligan’s illegal appointment as US Legal professional for the Japanese District of Virginia. Throughout his second time period, Trump has largely ignored his statutory and constitutional obligation to get Senate approval for US Attorneys. As a substitute, Bondi does a kind of three-hat dance to make sure that Trump’s most well-liked prosecutors can train the facility of the workplace previous the 120-day interim time period set out in 28 USC § 546.
First she appoints the crony beneath § 546; then she purports to make the crony their very own first assistant, in order that they’re robotically promoted to performing US Legal professional when the 120 days expires; after which for good measure, she designates the crony as a particular counsel beneath 28 USC § 515.
Bondi’s relied on this gambit since July, when she first used it for John Sarcone, III within the Northern District of New York. And even when courts dominated that the crony can’t maintain the place of US Legal professional, the workplace’s prosecutions have survived. However for no matter purpose, on September 22 Bondi appointed Halligan primarily based on § 546 alone. And she or he’s been making an attempt to undo the injury ever since.
On Halloween, Bondi tried to wash up the mess by ratifying the indictment and retroactively putting in Halligan as particular lawyer beneath § 515 as of September 22. Trick or deal with!
There are a number of issues with this stratagem. To start with, that’s not how linear time works, Pam! Second, by this logic, any rando off the road might current a case to a grand jury — which is kind of what occurred right here — and it could be wonderful so long as the AG blessed it after the actual fact. Why hassle to appoint a US lawyer in any respect?
At Thursday’s listening to final week, Decide Currie prompt Bondi couldn’t have ratified the indictment (or indictments) on October 31 as a result of she hadn’t seen the complete presentment to the grand jury.
“It turned apparent to me that the lawyer basic couldn’t have reviewed these parts of the transcript offered by Ms. Halligan,” the choose stated, based on Politico.
By the federal government’s personal admission the DOJ didn’t request a transcript of the “total recording” till after being ordered to take action in Decide Currie’s second order on November 4. And so, on Friday Bondi submitted but one other declaration purporting to re-ratify the indictment primarily based on a assessment of the “full” report.
“For the avoidance of doubt, I’ve reviewed everything of the report now accessible to the federal government and ensure my data of the fabric details related to the grand jury proceedings,” she wrote “Primarily based on that data, I hereby train the authority vested within the Legal professional Normal by legislation, together with 28 U.S.C. § 509, 510, and 518(b), to ratify Ms. Halligan’s actions earlier than the grand jury and her signature on the indictment returned by the grand jury.”
Which is all properly and good if the court docket accepts that the lawyer basic can ratify an illegally obtained indictment publish facto. And that she will retroactively appoint somebody as a particular counsel. And that there actually aren’t any extra “gaps” within the report.
If not … this indictment is DOA.
Oh, and PS, Cleary was fired two weeks later. Prolly only a coincidence, proper?
Aaaaaaand proper on time, Justice of the Peace Decide Fitzpatrick ordered the federal government to launch the grand jury transcripts to Comey primarily based on a mere 11 unbiased grounds.
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