The judge wrote that “the prosecutor” made at least two statements to grand jurors that seemed to be “fundamental misstatements of the law.”
The remarks themselves were redacted in the court filing. But Fitzpatrick said they came in response to grand jurors’ questions and were directly related to communications involving Comey.
One of the remarks, the judge said, implied that Comey does not have a Fifth Amendment right to decline to testify at trial, which may have led grand jurors to believe that it is Comey’s burden, not the government’s, to prove guilt beyond a reasonable doubt.
That statement was made in response to “challenging questions” from grand jurors, Fitzpatrick continued, suggesting grand jurors may have believed that even if Halligan could not answer their questions, Comey would later have to.
The other remark “clearly suggested” to grand jurors that they did not have to rely on the record before them and could be assured that the government had more, and possibly better, evidence that would be presented at trial, the judge said.
Fitzpatrick also raised concern about the actual indictment returned.
Halligan initially sought to charge Comey with three counts, but a grand jury rejected one of those charges. The top prosecutor prepared a second indictment, removing that count, which was accepted by a magistrate judge.
But Fitzpatrick said the record seems to indicate that the grand jury did not review the actual indictment that was ultimately returned, throwing the case into “uncharted legal territory.”
He pointed to a declaration Halligan signed addressing missing minutes in the grand jury transcript as proof of the catch-22.
“If the prosecutor is mistaken about the time she received notification of the grand jury’s vote on the original indictment, and this procedure did take place, then the transcript and audio recording provided to the Court are incomplete,” the judge wrote.