Opinion: How prosecutorial incompetence doomed the James Comey case
Opinion by Bennett L. Gershman, opinion contributor
A federal judge on Monday dismissed charges against former FBI Director James B. Comey and New York Attorney General Letitia James, ruling that Lindsey Halligan, the prosecutor in both cases, had been unlawfully appointed to her position, and therefore the indictments she secured must be thrown out.
According to U.S. District Judge Cameron McGowan Currie, Halligan’s appointment was unconstitutional. “All actions flowing from Ms. Halligan’s defective appointment, including securing and signing Mr. Comey’s indictment, constitute unlawful exercises of executive power and must be set aside,” Currie wrote. “There is simply no alternative course to cure the unconstitutional problem.”
The ruling by Judge Currie follows the extraordinary opinion last week by Federal Judge William Fitzpatrick in the government’s case against Comey. The judge rebuked the prosecution for flagrant misconduct in the grand jury and ordered it to disclose to the defense the grand jury transcript and materials used to indict Comey.
The two opinions represent another instance of how low the Justice Department has sunk since Donald Trump took office and sought to use prosecutorial power against his enemies.
The grand jury proceeding was produced and directed by Lindsey Halligan, an insurance lawyer elevated by Trump without any prosecutorial experience. She was ordered to get Comey indicted but performed so badly that not only was the Comey indictment dismissed, but Halligan could face disciplinary charges for her incompetence.
Halligan presented the case alone; no other prosecutor was there to help her. She called just one witness, an FBI agent who was compromised by using second- or third-hand evidence he received from other agents. However, that information was tainted because it may have included privileged communications between Comey and his lawyer, discovered in an earlier investigation of Comey and which lay buried for several years until Trump ordered Comey’s reinvestigation.
The information was learned after the execution of several search warrants for the lawyer’s electronic devices; the investigators, in violation of the Fourth Amendment, failed to identify and isolate potentially privileged information from usable information. As Judge Fitzpatrick observed, “The government’s decision to allow an agent who was exposed to potentially privileged information to testify before a grand jury is highly irregular and a radical departure from past Justice Department practice.”
Halligan, in presenting the agent’s testimony, like a deer in headlights, appeared to know nothing about the requirements of the Fourth Amendment. These include the need to particularize and isolate privileged from non-privileged information; the “highly unusual” practice of using in a new investigation outdated materials from an earlier investigation; and the competence needed to give the grand jury careful and accurate instructions about how to evaluate the evidence and apply the correct legal principles.
My treatise, “ Prosecutorial Misconduct,” covers a wide spectrum of improper conduct by prosecutors in grand juries. But Halligan has given me a few new examples.
After telling the grand jury that she was their legal adviser, Halligan made a “ highly prejudicial misstatement of the law” by telling jurors that if Comey is in fact innocent, he has the right to testify at his trial and explain his actions. Thus, Halligan placed the burden on Comey to explain away the government’s evidence — a clear violation of Griffin v. California (1965). As Fitzpatrick noted “the grand jurors may have reasonably understood the prosecutor to mean that if she could not satisfactorily answer their questions, then Mr. Comey would answer those questions at trial.”
Halligan also told the jurors that they did not have to rely on the evidence before them to determine probable cause “but could be assured the government had more evidence — perhaps better evidence — that would be presented at trial.” Indicting Comey based on unknown evidence? Obviously, Halligan was way over her head.
To the judge, Halligan approached her task “casually, at best” — with a “cavalier attitude” he said was “improperly informing the grand jury deliberations,” showing “a disturbing pattern of profound investigative missteps,” and raising “genuine issues of misconduct” that “potentially undermined the integrity of the grand jury proceeding.”
Finally, and shockingly, Halligan never presented the judge with the indictment of Comey. Nor did the grand jury approve that indictment. There were two indictments. After the grand jury rejected the first indictment, Halligan prepared a second indictment. But as the Justice Department has now acknowledged, the second indictment was never presented to or voted?on or approved by the grand jury. As Fitzpatrick predicted before even knowing about this astonishing disclosure, “the court is in uncharted legal territory.”
Yes, we are. And the presumption of regularity generally associated with grand jury proceedings has been obliterated by an incompetent pseudo-prosecutor. ??
It appears that Halligan’s conduct contaminated the grand jury proceedings. To be sure, she was placed in an untenable role by Trump. Not surprisingly, she performed incompetently. And for her deficient performance, Halligan may have to pay a price in a disciplinary forum, where she may be charged with violating ABA Model Rule 1.1 (Competence) and Rule 8.4 (Misconduct).
Halligan joins a long list of Trump lawyers who have been disbarred, suspended, sanctioned and otherwise disciplined for representing a miscreant who breaks everything he touches and every person who serves him.
Bennett L. Gershman is a distinguished professor of law at Pace University and author of “Prosecutorial Misconduct.”
Opinion: How prosecutorial incompetence doomed the James Comey case |
