This is what you get when incompetence meets ignorance and tips the hat to arrogance

Lindsay Halligan in the Oval Office

James B. Comey is going to sleep well tonight. His lawyer, Michael R. Dreeben, spent the morning in a courtroom in Alexandria, Virginia, appearing at a hearing ordered by U.S. District Judge Michael S. Nachmanoff on the subject of the validity of the indictment Comey faces for lying to the Senate and obstructing Congress.

Oh, boy, now comes that classic phrase, “not to put too fine a point on it.” The day did not go well for either the Department of Justice, which following the orders of Donald Trump, arranged to have Comey indicted, or for Lindsay Halligan, allegedly the U.S. Attorney for the Eastern District of Virginia, who appears to have fucked up the Comey indictment in every possible way that an inexperienced lawyer could.

The hearing was on Comey’s motion to dismiss the indictment on the basis that it was brought on Trump’s orders to retaliate against him for critical interviews he has given and what he has written about Trump since 2017, when he was fired by Trump. Halligan sat at the table for the government, alongside two Assistant U.S. Attorneys (AUSAs) from the state of North Carolina, to whom she was forced to turn when none of the experienced AUSAs in her own office would consent to become involved in the indictment of Comey, which had already been rejected by the U.S. Attorney whom Halligan had replaced, Erik S. Siebert.

The hearing quickly devolved into another issue entirely: whether the indictment against Comey had been brought properly at all. Judge Nachmanoff was understandably curious about why former U.S. Attorney Siebert had found insufficient cause to indict Comey when that decision was up to him. The judge asked one of Halligan’s hired-from-out-of-state assistants, N. Tyler Lemons, for the declination memo that is typically written when a U.S. Attorney declines to indict a suspect who has been under investigation for committing a crime. Lemons was, shall we say, not forthcoming, telling the judge, incredibly, “I don’t know the world of documents that exist.”

The judge stiffly reminded Assistant U.S. Attorney Lemons, “You are counsel of record in this case,” and asked him if he had been inclined to “seek out a declination memo.” I wasn’t present for the hearing, and there were no cameras or recordings of what happened, but I would take a wild guess that Lemons did some hemming and hawing as he attempted to answer the judge’s question, finally admitting that on the orders of Deputy Attorney General Todd Blanche, he had been told not to even talk about the existence of any purported declination memo, because the Department of Justice was “studying” whether they could make a case that they were legally justified in refusing to disclose it.

Oh, boy, that must have made Judge Nachmanoff happy, to have this deputy assistant U.S. attorney imported from another state standing there and telling him that the rather notorious Deputy Attorney General, who had been Donald Trump’s personal lawyer and conducted the sham-at-all-costs interview with Ghislaine Maxwell in prison, was interfering with the proper functioning of his courtroom from across the Potomac River. The Washington Post had already reported that two sources in the DOJ had told them that the declination memo indeed exists. It’s likely that Judge Nachmanoff, situated in Northern Virginia, reads the Washington Post, so he was probably already aware that the memo exists. And yet this pipsqueak purporting to be an assistant U.S. attorney was telling him that he couldn’t talk about it because Todd “I’m covering Trump’s ass as fast as I can” Blanche had told him not to talk about it.

Judge Nachmanoff was curious about the indictment of Comey because U.S. Magistrate Judge William E. Fitzpatrick had on Monday issued what the Post called a “blistering assessment” of the case against Comey and ordered that all grand jury material from the indictment of Comey be turned over to his defense lawyers because “government misconduct may have tainted the grand jury proceedings.” Among other things, Magistrate Fitzpatrick ruled that Halligan, who personally made the presentment to the grand jury, had made “fundamental misstatements of the law” that “potentially undermine the integrity of the grand jury proceeding.”

Apparently because Halligan was the one who presented evidence to the grand jury, Judge Nachmanoff called her to the podium to personally answer his questions about how the grand jury proceedings were handled. He was so unimpressed by her command of the facts and law regarding the grand jury and the process of bringing an indictment that he “quickly dismissed” her and told her to “sit down,” according to the Post.

Comey’s attorney, Dreeben, put the issue on the table adroitly. It turns out that the indictment Comey is facing, on the two counts of lying to and obstructing Congress, is a replacement for an initial indictment that was for three counts. Halligan was apparently shocked and unhappy that the grand jury voted “no bill” on one of the counts in the first indictment, so she handwrote changes on the indictment, deleting the count that was no-billed, and took it back into the grand jury room to be signed again.

There was a problem, according to lawyer Dreeben. Magistrate Fitzpatrick’s Monday ruling had been made after he had read all the grand jury proceedings and included the interesting detail that when Halligan took the “new” indictment back into the grand jury room, 22 out of 23 members of the grand jury were not there. The only grand jury member present was the foreman, whom Halligan got to sign the indictment without the other members of the grand jury voting on the new indictment or even seeing it.

Because the grand jury had not voted, “there is no indictment Mr. Comey is facing,” Dreeben told the judge. “The new indictment wasn’t a new indictment.”

All this time, U.S. Attorney Lindsay Halligan was sitting there at the prosecution table, mute in the face of Dreeben’s indictment of her as an incompetent, ignorant fool.

The actual subject of the hearing – the Comey motion to dismiss the indictment as vindictive and retaliatory, was discussed until Judge Nachmanoff, having listened to arguments on both sides, announced that the issues in question were “too weighty and complex” to deal with immediately and said he would rule on that question after further consideration.

Comey’s attorneys had argued that Trump’s animus to Comey was obvious from his years of criticisms of Comey, including calling him a “traitor” and “guilty as hell” in social media posts and public statements. The fact that Trump fired former U.S. Attorney Seibert when he refused to indict Comey and appointed another of his personal lawyers, Halligan, in his place with orders to indict him, was even more evidence that Trump had singled out Comey in a discriminatory manner.

In reply to these facts, the two out-of-state assistant U.S. attorneys brought in to clean up after Halligan had soiled the courthouse, argued that the decision to prosecute Comey had been made “independently” by the Department of Justice, and all the evidence of Trump’s years of animus to Comey and his calls to prosecute him amounted to “legitimate prosecutorial motive.”

That’s right. Halligan had her two go-fers argue in court that Trump’s obvious discrimination against Comey wasn’t evidence of “discrimination,” because there had to be an “admission of discriminatory purpose” by Trump. Instead, they argued, “the only direct admission from the President is that DOJ officials decided whether to prosecute, not him.”

That is the logic presented by the U.S. Attorney for the Eastern District of Virginia to a federal district judge who will rule on whether the indictment of James Comey is legitimate or illegitimate. If Halligan had stood at the podium under questioning from Judge Nachmanoff and just shouted like a kindergartener, “because,” she would have stood a better chance today.

Instead, court-watchers and legal experts were unanimous that the indictment of James Comey is likely to be thrown out “with prejudice,” which means that it cannot be appealed to a higher court or brought again before a new grand jury.

Here is the thing about an autocrat who achieves a form of absolute power: Donald Trump is fond of telling his audiences that “I can do anything I want!” Yes, he can. He can appoint an incompetent, arrogant, ignorant fool such as Lindsay Halligan to an important position, and she is all the evidence you need that autocracy is a bad way of achieving your goals. Because when what you want to accomplish meets rules and evidence and logic in a court of law, the Lindsay Halligans of the world will not prevail. Comey will walk free one day soon, and he will be able to sit back and watch Donald Trump try to lie his way out of a whole bunch of evidence that shows his friendship with Jeffrey Epstein is the one corrupt thing he won’t get away with.