Left: President Donald Trump walks to board Air Force One at Naval Station Norfolk Chambers Field in Norfolk, Va., Sunday, Oct. 5, 2025. (AP Photo/Alex Brandon). Right: Former Director of the Federal Bureau of Investigation James Comey laughs while addressing a gathering at Harvard University”s Institute of Politics’ JFK Jr. Forum in Cambridge, Mass., Monday, Feb. 24, 2020. (AP Photo/Charles Krupa).
Attorneys representing former FBI Director James Comey on Friday filed yet another motion to dismiss the criminal case against him – this time based on “fundamental errors in the grand jury process.”
The blistering motion takes direct aim at President Donald Trump and his handpicked prosecutor overseeing the case.
“Those errors reflect the reckless and ill-conceived nature of this prosecution: A president intent on prosecuting Mr. Comey before the statute of limitations expired directed the appointment of a White House aide, Lindsey Halligan, as interim U.S. Attorney, and she then rushed to secure an indictment while flagrantly violating basic grand jury rules in the process,” the 29-page motion to dismiss reads. “Those grand jury errors warrant dismissal twice over.”
The motion puts a fine point on the claim of presidential influence.
“After receiving news of the indictment, the President rejoiced and congratulated Ms. Halligan for successfully carrying out his bidding,” the filing goes on.
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The motion comes the same week Halligan made a startling admission about the case in open court during a hearing before U.S. District Judge Michael Nachmanoff, a Joe Biden appointee.
As it turns out, the operative two-count indictment was not actually presented to the full grand jury after count one — a false statement charge, in an initial three-count indictment — failed.
Rather, the U.S. Department of Justice, instead of presenting a new two-count indictment, removed the failed third count and had the grand jury foreperson sign the substitute document – one that differed from the document the full grand jury deliberated on.
This course of events was first noted in an order issued by U.S. Magistrate Judge William Fitzpatrick. During the hearing, Nachmanoff sought clarification – resulting in both Halligan and another prosecutor confirming the misstep.
“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?” the district judge asked, according to a courtroom report by ABC News.
Assistant U.S. Attorney Tyler Lemons replied: “Standing here in front of you, Your Honor, yes, that is my understanding.”
Such a flub is the same as no indictment at all, Comey’s attorneys say.
“[T]he case should be dismissed because the grand jury never approved the operative indictment,” the motion goes on. “Here, the grand jury voted to reject the only indictment that the government presented to it. Instead of presenting the grand jury with a revised indictment, Ms. Halligan signed a new two-count indictment that the grand jury had never seen or voted on. Because at least 12 jurors did not ‘approve the actual indictment,’ there is no valid indictment of Mr. Comey.”
The motion goes on to argue the “legally flawed” case is an instance of trying to prosecute without a “valid indictment of a grand jury” in violation of the Fifth Amendment. Lacking such an indictment, at this stage in time, also means Comey was not indicted within the five-year statute of limitations for the alleged crimes, according to the filing.
On Thursday, prosecutors tried to right the ship by swiftly reversing course.
“The official transcript of the September 25, 2025, proceedings before Magistrate Judge Vaala conclusively refutes that claim and establishes that the grand jury voted on – and true-billed – the two-count indictment,” the latest notice correcting the record filed by DOJ reads.
Comey’s attorneys rubbished the DOJ’s effort to clean up a self-inflicted error.
“The government’s late-breaking ‘Notice Correcting the Record’ cannot save the putative indictment,” the latest motion to dismiss continues. “That filing contradicts numerous other representations that the government has made to this Court. And it rests on an erroneous overreading of an ambiguous exchange between the grand jury foreperson and the magistrate judge.”
The defense filing also reiterates earlier concerns about allegedly “missing” grand jury minutes – or gaps in the transcript. Such arguments were originally used to bolster the defense’s claims that Halligan was not lawfully appointed as interim U.S. attorney.
Now, Comey’s lawyers say the specter of missing grand jury minutes is likely fatal to the government’s case because the issue calls into question the DOJ’s use of the grand jury transcript to try and reverse course on the validity of the broader indictment.
“Even if the grand jury was in fact presented with the operative indictment, that would only raise a host of additional problems for the government—not least of which is the apparent absence of any recording of that presentment,” the motion goes on.
Comey’s latest dismissal bid ends with a strong call to action – essentially asking the court to give Trump himself notice.
From the filing, at length:
The government has thus committed a series of flagrant legal violations. And the government’s misconduct has threatened Mr. Comey’s liberty—even though Mr. Comey should be experiencing the peace of an expired statute of limitations. If a dismissal is without prejudice, the government will inevitably try to prosecute Mr. Comey again. The only way to deter the government from continuing to pursue this deeply flawed effort to prosecute Mr. Comey is to dismiss with prejudice. That strong remedy will also send a signal to the President and the Department of Justice that the current pattern of politically motivated prosecutions violates bedrock American constitutional principles. The Judiciary is a vital bulwark against this Administration’s intolerable abuse of executive power; it should fulfill that role by dismissing this profoundly unjust and unconstitutional prosecution with prejudice.
