The case against Comey could be in big trouble

In late September, when I wrote for Law&Crime about why James Comey’s legal team should feel optimistic after his indictment, I underestimated just how weak the government’s case against the former FBI director appears to be.

Comey is charged with lying to and obstructing Congress during a September 2020 appearance before the Senate Judiciary Committee, where he was questioned about whether he had authorized anyone at the FBI to act as an anonymous source for news stories on the bureau’s investigation into Russian election interference.

This past September, Erik Siebert, the interim U.S. Attorney for the Eastern District of Virginia, was reportedly under heavy pressure from the Trump administration to indict Comey. Siebert resisted, apparently believing the case lacked merit. He raised concerns about the strength of the evidence and prepared a memo declining prosecution.

On Sept. 19, President Trump said he wanted Siebert “out.” Siebert resigned later that day. The following day, President Trump publicly urged Attorney General Pam Bondi to appoint a new prosecutor and pursue charges against Comey, New York Attorney General Letitia James, and Sen. Adam Schiff of California, insisting that “we can’t delay any longer.”

That post quickly became central to Comey’s defense. As the Epstein scandal forced the administration to concede to congressional demands for investigative files, President Trump again publicly asked Bondi to target “Democrats” connected to Epstein.

Bondi had previously said no additional criminal charges were expected from the Epstein evidence. But in response to Trump’s post, she wrote: “Thank you, Mr. President. SDNY U.S. Attorney Jay Clayton is one of the most capable and trusted prosecutors in the country, and I’ve asked him to take the lead. As with all matters, the Department will pursue this with urgency and integrity to deliver answers to the American people.”

As expected, Comey’s attorneys have asked the federal judge overseeing the case to dismiss the indictment as a politically motivated and vindictive prosecution of someone viewed as an opponent of the president.

According to Politico, Comey attorney Michael Dreeben—a former deputy solicitor general who has argued more than 100 cases before the U.S. Supreme Court—focused on the president’s public posts and Bondi’s response during a hearing this week. Dreeben spent an hour arguing that the charges were driven entirely by President Trump’s “personal animus” toward Comey.

Dreeben also pointed to Bondi’s most recent actions as evidence of political pressure. “We have never before seen in this country a blatant use of criminal justice to achieve political ends,” he said.

The prosecution’s difficulties do not end there. After Siebert’s removal, Lindsey Halligan was appointed interim U.S. attorney. With virtually no criminal law experience, Halligan had to secure an indictment before the statute of limitations expired on Sept. 30, 2025.

According to reports, the rushed process may have resulted in significant errors. During the hearing, Halligan allegedly told the grand jury—incorrectly—that Comey could not invoke his Fifth Amendment right to remain silent. More troubling, she admitted on Nov. 19 that not all grand jurors had the opportunity to review the final two-count indictment, which replaced an earlier three-count version after the grand jury rejected one of the charges.

U.S. District Judge Michael Nachmanoff questioned Halligan about how many jurors were present when the indictments were presented to the magistrate judge. Halligan acknowledged that only the foreperson and one other grand juror were there, confirming that most jurors never saw the revised indictment.

The judge noted he simply wanted to ensure clarity about whether the full grand jury had reviewed the charges. Halligan again confirmed it had not.

The case against Comey now appears to be in significant jeopardy. Judge Nachmanoff could issue a ruling as early as next week.

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