The Indictment and Report of Failure to Return Indictment are likely to be focal points in determining whether this case should be dismissed. Some of the likely issues include:
- Did Interim U.S. Attorney Lindsey Halligan have the proper authority to bring this Indictment? Looking at jurisdiction issues are important first steps and in some instances, last steps if the Indictment is tossed out by the judge.
- Does the Indictment pass the initial test of providing probable cause? This Indictment was rejected by a prior prosecutor, which therefore warrants closer scrutiny to this issue. ABA Criminal Justice Standard 3-4.6(a) provides that: “(a) A prosecutor should not seek an indictment unless the prosecutor reasonably believes the charges are supported by probable cause and that there will be admissible evidence sufficient to support the charges beyond reasonable doubt at trial. A prosecutor should advise a grand jury of the prosecutor’s opinion that it should not indict if the prosecutor believes the evidence presented does not warrant an indictment.”
- Does this Indictment meet the legal requirements for charging an individual? In some cases we see prosecutors using speaking indictments to circumvent rules that prohibit improper pre-trial publicity. But this Indictment has the opposite problem – it says so little that one cannot tell what is the crime. It alleges in part that Comey, “by falsely stating to a U.S. Senator during a Senate Judiciaiy Committee hearing that he, JAMES B. COMEY JR., had not ‘authorized someone else at the FBI to be an anonymous source in news reports’ regarding an FBI investigation concerning PERSON 1.” It seems strange to see a charge under 18 U.S.C. 1001 for a false statement, when there is no showing in the indictment of the actual statement’s language, specifically who the statement was made to, the actual content of the statement, and how this statement was material. It is beyond a bare bones Indictment. I keep hearing in the back of my head, language from the Supreme Court decision in Russell v. United States (1962) – “The vice of these indictments, rather, is that they failed to satisfy the first essential criterion by which the sufficiency of an indictment is to be tested, i.e., that they failed to sufficiently apprise the defendant ‘of what he must be prepared to meet.’”
- Does this Indictment pass the test of selective prosecution? Normally this is a tough test for the defense, as prosecutorial independence allows prosecutors enormous discretion. But this case has the unique aspect of the President explicitly posting on Truth Social language that can be used to demonstrate that this Indictment is a selective prosecution.
- Does this Indictment pass the test of vindictive prosecution? Although most see this issue as one to raise post-trial for success, the unique circumstances here warrant its review as a preliminary matter.
- There are so many other substantive issues – was this statement material, how was it material, did it have a tendency to influence something, was there any mens rea, and was the statement even false. And we have not even looked at Count II – which also has many issues likely to arise if this case gets beyond a Motion to Dismiss. But these are for another day.
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