On Friday afternoon, cosplay US Lawyer Lindsey Halligan defended her A-plus prosecuting chops.
“There aren’t any lacking minutes, opposite to the suggestion raised by the courtroom,” she huffed, insisting that there was positively no hole within the document 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 acknowledged, incapacity to proofread is the least of the issues right here. Halligan’s appointment as US Lawyer for the Japanese District of Virginia was nearly actually unlawful. And even when Halligan was legally appointed, her personal incompetence and missteps may nicely 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 below questioning by Senator Lindsey Graham; 2) false statements below 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 a minimum of three signed variations of the Comey indictment. The first incorporates three counts, labeled Depend 1, Depend 2, and Depend 2. The second labels them as Counts 1, 2, and three. And the third appropriately states that the jury returned fees on simply two counts.
Choose 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 provide the grand jury document on October 28, the choose issued a second order calling the prior manufacturing incomplete and directing Halligan to provide every thing, together with “statements made previous to and after the testimony of the witness and in the course of the presentation of the three-count and subsequent two-count indictments.”
On the listening to on Thursday, she instructed that the document nonetheless contained a 139-minute hole. In keeping with Politico, “Currie mentioned that it appeared at about 4:28 p.m. on the day the indictment was returned in September, there was no courtroom reporter within the room to transcribe the proceedings, leaving no document of the ultimate minutes of the grand jury’s session.”
Many observers interpreted this as indicating that Halligan introduced the case with no courtroom 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, courtroom reporter, or different particular person could also be current pursuant to Rule 6(d) of the Federal Guidelines of Legal 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 Lawyer Maggie Cleary that the grand jury had returned a real invoice as to the introduced Depend Two and Depend Three of the indictment and that the grand jury had not returned a real invoice as to the introduced Depend 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 courtroom 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 a number of ways in which this might have gone down, however that’s not certainly one of ‘em. Some kind of approach, somebody went again to the jury foreperson and acquired one other signature.
Right here’s how the Washington Post mentioned it occurred:
[Halligan] and First Assistant U.S. Lawyer Mary M. “Maggie” Cleary had been within the Alexandria courtroom when the indictment was delivered to U.S. Justice of the Peace Choose Lindsey R. Vaala on Thursday night. […] The grand jury foreperson advised Vaala that the panel had rejected certainly one of three counts within the initially submitted indictment. Prosecutors then introduced a revised indictment, the foreperson mentioned, containing solely the 2 counts that the grand jury had agreed on and with which Comey was finally charged.
The choose obtained each indictments Thursday night and famous she was puzzled by the end result.
“This has by no means occurred earlier than. I’ve been handed two paperwork … with a discrepancy,” Vaala mentioned. “I’m a bit confused why I used to be handed two issues … that had been inconsistent.”
Halligan mentioned on the lectern she hadn’t seen the primary indictment that was rejected, however Vaala famous Halligan appeared to have signed that unique doc. [Emphasis added.]
In her declaration, Halligan insists that “In the course of the middleman time, between concluding my presentation and being notified of the grand jury’s return, I had no interplay in anyway with any members of the grand jury.” That may nicely be true. And it may also be true that “At each second I used to be in entrance of the grand jury, the courtroom reporter was additionally current.”
However that also leaves a gap within the document, and that gap has different implications for the case.
Lipstick on a pig
Choose Currie was assigned from South Carolina to listen to the movement to dismiss based mostly on Halligan’s illegal appointment as US Lawyer 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 an alternative, Bondi does a kind of three-hat dance to make sure that Trump’s most popular prosecutors can train the ability of the workplace previous the 120-day interim time period set out in 28 USC § 546.
First she appoints the crony below § 546; then she purports to make the crony their very own first assistant, in order that they’re mechanically promoted to appearing US Lawyer when the 120 days expires; after which for good measure, she designates the crony as a particular counsel below 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 Lawyer, the workplace’s prosecutions have survived. However for no matter motive, on September 22 Bondi appointed Halligan based mostly on § 546 alone. And he or she’s been attempting to undo the harm ever since.
On Halloween, Bondi tried to wash up the mess by ratifying the indictment and retroactively putting in Halligan as particular legal professional below § 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 may current a case to a grand jury — which is kind of what occurred right here — and it will be superb so long as the AG blessed it after the actual fact. Why trouble to appoint a US legal professional in any respect?
At Thursday’s listening to final week, Choose Currie instructed 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 grew to become apparent to me that the legal professional normal couldn’t have reviewed these parts of the transcript introduced by Ms. Halligan,” the choose mentioned, in line with 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 Choose Currie’s second order on November 4. And so, on Friday Bondi submitted but another declaration purporting to re-ratify the indictment based mostly on a evaluation of the “full” document.
“For the avoidance of doubt, I’ve reviewed the whole thing of the document now out there to the federal government and make sure my information of the fabric information related to the grand jury proceedings,” she wrote “Primarily based on that information, I hereby train the authority vested within the Lawyer Common by regulation, 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 nicely and good if the courtroom accepts that the legal professional normal can ratify an illegally obtained indictment publish facto. And that she will be able to retroactively appoint somebody as a particular counsel. And that there actually aren’t any extra “gaps” within the document.
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 Choose Fitzpatrick ordered the federal government to launch the grand jury transcripts to Comey based mostly on a mere 11 impartial grounds.
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