How a Grand Jury Failure Could End the Case Against Comey

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The Virginia case accused James Comey, the former Federal Bureau of Investigation director, of falsely denying that he had authorized someone at the bureau to act as an anonymous source for reporting about an investigation. On November 24, 2025, U.S. District Judge Cameron McGowan Currie dismissed the case after finding that interim prosecutor Lindsey Halligan had been unlawfully appointed.

Comey’s lawyers argued that the grand jury never approved the final indictment, meaning no valid charge existed before the September 30, 2025 deadline. On that argument, obtaining a new indictment now would mean starting the prosecution after its deadline, which could prevent the case from returning. The government argued that the original indictment stopped the deadline from running and that federal law permits a new indictment after dismissal.

The Virginia indictment, filed on September 25, 2025, accused Comey of making a false statement and obstructing a congressional proceeding through his September 30, 2020 testimony. Currie’s ruling addressed Halligan’s appointment and expressly left Comey’s separate challenge to the grand jury’s approval outside that decision.

The dismissed case and the appeal

The government appealed the dismissal on December 19, 2025, and the Fourth Circuit heard arguments in that appeal on September 15, 2026. Reuters reported that the hearing focused on whether the Attorney General could appoint Halligan to prosecute the case. The University of Michigan’s Civil Rights Litigation Clearinghouse described the appeal as ongoing in its October 6, 2026 case summary.

The Justice Department announced a separate indictment in North Carolina on April 28, 2026, accusing Comey of threats against President Donald Trump. That later charge concerns different alleged conduct from the congressional testimony at issue here.

What the grand jury approved

A grand jury examines a prosecutor’s evidence to decide whether there is probable cause to bring criminal charges: enough evidence to believe that a person probably committed a federal crime. The trial jury decides guilt or innocence. Federal Rule of Criminal Procedure 6 requires at least twelve grand jurors to agree to an indictment, the formal criminal charge. The whole panel, its foreperson or its deputy foreperson may return the indictment to a magistrate judge in open court.

When the charges were presented in court on September 25, 2025, Magistrate Judge Lindsey Vaala questioned an inconsistency between a signed two-count indictment and a document recording failure to agree on three proposed counts. The foreperson explained that the grand jury had rejected only the first proposed count, while the other two were placed in a separate package that it agreed on.

When Vaala asked, “So you voted on the one that has the two counts?” the foreperson answered, “Yes.” The government relies on that exchange, but the defense disputes that the full panel approved the charging document itself.

In a November 21, 2025 dismissal motion, Comey’s lawyers argued that the full grand jury never approved the final two-count indictment and that the document prosecutors presented originally was rejected. They argued that proceeding on the replacement violated the Fifth Amendment’s grand jury requirement and Rule 6.

Comey’s lawyers pointed to Halligan’s declaration that the transcript covered her entire presentation and that no additional presentation to the grand jury occurred outside that record.

They also cited the government’s account that the coordinator gave the corrected indictment to the foreperson and deputy foreperson, arguing that this differed from presenting it to the full panel. The defense argued that the foreperson’s “Yes” could refer to approval of the surviving counts in the earlier draft, rather than a new vote on the replacement document.

The government’s November 20, 2025 filing said it was correcting statements at the November 19 hearing before U.S. District Judge Michael S. Nachmanoff that suggested a problem with the grand jury vote. Comey’s lawyers argued in their November 21 motion that the government had given conflicting accounts and that the new account contradicted its prior statements.

The government relied on the September 25 transcript of that court appearance, arguing that it established that the two-count indictment had been approved. Prosecutors pointed to the foreperson’s confirmation, the court’s handling of the charging documents and the clarification that only one proposed count lacked the grand jury’s agreement. The disagreement matters because the defense says approval of the surviving counts did not establish approval of the final charging document, while the government says the transcript of that court appearance established that approval.

Which errors require dismissal

The Supreme Court’s 1985 decision in United States v. Miller allowed a mail-fraud conviction to stand even though trial proof supported a narrower scheme than the indictment alleged. The indictment accused the defendant of both participating in a burglary and lying to the insurer about the value of his loss; the trial proof supported only the false-value allegation. The Court held that the proved offense was already fully stated in the indictment and that the unused allegations were not essential to it.

Miller also rejected the proposition from Ex parte Bain that narrowing an indictment automatically makes it void. Miller illustrates the difference between narrowing an approved charge and the defense’s claim that the replacement charging document was never approved.

In Bank of Nova Scotia v. United States in 1988, the Supreme Court upheld the reversal of a dismissal because the grand jury misconduct had not harmed the defendants. For nonconstitutional errors, the Court required that the violation substantially influence the decision to indict, or leave grave doubt about whether that decision was free from its influence. It distinguished errors that compromise the basic protections built into the grand jury process and make the proceedings fundamentally unfair, where harm to the defendants can be presumed.

Comey’s November 21, 2025 motion cited Bank of Nova Scotia when seeking dismissal with prejudice, which would bar bringing the same charges again, on a separate ground: alleged misconduct before the grand jury. His lawyers argued that unlawfully obtained information and serious misstatements of law raised grave doubt that the decision to indict was free from the misconduct’s influence.

Dropping an unnecessary allegation, an error affecting the grand jury’s vote and a failure to obtain a legally required indictment raise different questions about whether a prosecution can proceed. A court must identify the actual violation and the remedy it supports before treating an irregularity as the end of the prosecution.

Why the deadline makes a new charge difficult

The statute of limitations is the deadline for starting a prosecution; Section 3282 sets an ordinary five-year limit for a federal indictment. Comey’s November 21 motion identified September 30, 2025 as the deadline for the alleged testimony offenses. The original indictment’s filing before that date and its legal validity are therefore different issues.

Section 3288 of Title 18 supplies a saving provision: after a felony indictment is dismissed following expiration of the ordinary deadline, a new indictment may generally be returned within six calendar months. In the event of an appeal, the statute instead specifies sixty days from the date the dismissal becomes final. It also allows six calendar months from the next regular grand jury’s convening if none is in session in the appropriate jurisdiction when dismissal occurs.

The saving provision expressly excludes a dismissal caused by failure to file the original charge on time, or another reason that would bar a new prosecution. Section 3288 can allow prosecutors to obtain a new indictment after the ordinary deadline has passed, but its exceptions make the reason for dismissal decisive.

Comey’s lawyers argued that the grand jury never legally approved the final indictment, so no indictment was found before the deadline and the saving provision could not rescue another prosecution. On that theory, replacing the document would not repair a timely charge; it would attempt to begin the prosecution after time had run out.

Currie’s November 24, 2025 order rejected the Attorney General’s October 31 attempt to validate the Comey indictment after the fact, a process called ratification. Even assuming ratification could cure a defective indictment, the judge held that the Attorney General could not have authorized Halligan’s original grand jury presentation and that the later approval came after the charging deadline.

The order cited lower-court decisions saying that an invalid indictment could not stop the limitations clock. It also held that Section 3288 was not available for the October 31 approval because Comey’s indictment was still pending, not dismissed.

The government’s February 9, 2026 appellate brief argued that the original indictment gave Comey adequate notice and stopped the limitations clock despite the appointment defect. Citing the Fourth Circuit’s 2021 decision in United States v. Ojedokun, the government argued that even a defective indictment could stop the limitations clock if it gave adequate notice and a later indictment neither materially broadened nor substantially amended the charges.

Prosecutors also argued that the Attorney General could have authorized Halligan by hiring her in another prosecutorial role, and that not exercising that power before the presentation did not prevent later approval.

The government alternatively argued that Section 3288 permitted a new indictment after dismissal and pointed to the Attorney General’s January 13, 2026 ratification of the Comey indictment. Those arguments seek to preserve a lawful charging route even if Halligan’s appointment was defective.

Currie dismissed the case without prejudice, explaining that she was invalidating Halligan’s actions and returning Comey to the position he occupied before indictment. Without prejudice leaves open the possibility of another charge; it does not resolve whether the separate limitations rules allow that charge.

The other grounds remain distinct

The appointment statute, 28 U.S.C. § 546, allows an Attorney General’s temporary appointee to serve until a successor appointed by the President qualifies or 120 days elapse, whichever happens first. If the 120-day appointment period expires, the statute permits the district court to appoint a U.S. attorney until the vacancy is filled.

Halligan’s predecessor, Erik Siebert, had already completed the Attorney General’s 120-day appointment period in May 2025 and continued under a district-court appointment before resigning in September. Currie held that appointment power did not return to the Attorney General when a court-appointed U.S. attorney left before a Senate-confirmed successor took office.

The government argued on appeal that the Attorney General could make successive temporary appointments and that both the Attorney General and the court had appointment power. Currie’s November 24 ruling instead held that the appointment power during this vacancy lay with the district court.

Magistrate Judge William Fitzpatrick’s November 17, 2025 opinion ordered disclosure of grand jury materials because specific irregularities might justify dismissal. He criticized the government’s decision to search previously seized material in 2025 without a new warrant despite a different investigation and legal theory. His opinion also identified potentially privileged communications among materials searched.

Attorney-client privilege protects confidential communications between a lawyer and client relating to legal advice or services, including emails and text messages. That protection matters here because the court’s concern involved government access to legal communications, rather than simply whether the underlying testimony was false. The disclosure ruling gave the defense material to examine possible grounds for dismissal; it did not itself order the indictment dismissed.

Comey’s October 30, 2025 motion also argued that Senator Ted Cruz’s questions were fundamentally ambiguous and that Comey’s answers were literally true. His filing reproduced an exchange in which Cruz asked about an asserted conflict with another bureau official’s account and Comey stood by his earlier testimony without characterizing that official’s statements.

The government’s November 13 response argued that choosing between plausible interpretations was a trial jury’s job and disputed the defense’s literal-truth theory. Those arguments concern the meaning and truth of the testimony, a separate question from who validly authorized the prosecution.

Comey’s October 20 motion cited Trump’s September 20 demand for immediate action, Halligan’s September 22 appointment and the September 25 indictment in its account of alleged political retaliation.

In its November 3 opposition, the government argued that the cited posts and reporting did not establish that prosecutors brought the case solely to punish protected speech. The timing supplies the defense’s asserted evidence of motive, while the government disputes whether it satisfies the legal standard for dismissal.

What would settle the charging question

Restoring the original prosecution raises the question of whether its indictment was valid; seeking a new indictment raises the question of whether prosecutors can overcome the expired charging deadline. The grand jury challenge could become decisive if a court finds that the required indictment was never obtained and rejects the government’s route around the expired deadline. The disputed arguments alone cannot establish that result.

For the latest filings and judicial decisions, consult the Clearinghouse record for United States v. Comey.

A motion records what a party asks the court to do; the dismissal order records what the judge actually decided.