Updated November 20, 2025 at 2:30pm ET
The prosecution and defense were back before U.S. District Judge Michael Nachmanoff on Wednesday for a hearing that resulted in even more fireworks and questions over whether the criminal case against former FBI Director James Comey will proceed to trial.
As reported on Thursday’s AM Update, Comey’s legal team back presented one of its multiple legal theories to get the case tossed, telling the judge that the case against their client stems from protected speech and President Donald Trump’s animosity toward him.
Attorney Michael Dreeben accused the president of crossing a line and using the “full weight of the criminal justice system” against the former FBI director. Comey’s team submitted more than 50 pages of comments Trump has made about him over the years as evidence of vindictive prosecution, including a September Truth Social post addressed to Attorney General Pam Bondi.
“Pam: I have reviewed over 30 statements and posts saying that, essentially, ‘same old story as last time, all talk, no action. Nothing is being done,'” Trump wrote, in part. “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.”
DOJ prosecutor Tyler Lemons argued there is no proof U.S. Attorney Lindsey Halligan acted because of President Trump’s social media post and the case was brought because Comey lied to Congress.
Judge Nachmanoff also pressed the Department of Justice on whether career officials initially recommended against prosecuting Comey. Lemons declined to answer, saying that information is privileged and could not be shared without permission from the higher-ups. He did, however, acknowledge he had seen drafts of memos arguing for and against the prosecution.
And then came what the media has painted as the bombshell moment of the hearing that, they claim, will derail the entire case. The judge asked the feds to explain an emerging irregularity on how the indictment itself was secured.
When Halligan presented the case to a grand jury in September, she initially sought three charges against Comey. The panel rejected one of the charges and approved two. Halligan amended the indictment to reflect the two approved charges, but there are questions surrounding whether the revised document had been seen by the full grand jury prior to sign off.
The On Thursday’s edition of The Megyn Kelly Show, Megyn shared some exclusive reporting on the controversy:
“I have exclusive reporting here on what actually happened in court yesterday. The entire grand jury, I’ve been reliably informed by a source who is in a position to know, did see the final indictment with just the two counts. They did see it, review it, and approve it. And I’m told that there is a transcript of that proceeding, which will prove exactly that the magistrate judge then confirmed with the foreperson on the record in open court at the time they returned the true bill that everyone on the grand jury had voted on that indictment that has two counts.
So, I believe that this entire issue will be cured as soon as the magistrate judge and the judge above him, the district court judge, get a look at what actually happened with the judge and the grand jury overseeing these two counts. My belief is this is a misunderstanding.”
Judge Nachmanoff ended Wednesday’s hearing without a ruling, and he requested more information from the DOJ about Halligan’s handling of the indictment.
The DOJ responded in a Wednesday evening filing. It read, in part: “The grand jury foreperson, as the representative of the grand jury, endorsed the revised two-count indictment by signing it and explaining on the record in open court that the indictment reflected the vote of the grand jury. The constitutional function and purpose of the grand jury, in all possible respects, was achieved and respected in this indictment.”
Original article from November 18, 2025 below:
The Department of Justice’s case against former FBI Director James Comey is under scrutiny.
As reported on Tuesday’s AM Update, Federal Magistrate Judge William Fitzpatrick ordered the government to turn over grand jury transcripts and materials to Comey’s legal team in a sharp ruling issued Monday.
Comey is facing obstruction of Congress and false statement charges stemming from his 2020 testimony before the Senate Judiciary Committee during which he answered questions about whether he authorized anyone at the FBI to serve as an anonymous source in news articles.
The charges were brought by U.S. Attorney Lindsey Halligan in the Eastern District of Virginia, who was sworn into the the position on September 22 and secured the indictment three days later – just prior to the statute of limitations expiring.
The ‘Investigative Missteps’
Judge Fitzpatrick identified 11 separate issues with the government’s handling of the case, citing what he called “a disturbing pattern of profound investigative missteps” that he said could have undermined the integrity of the grand jury proceedings.
The dispute partly centers on materials seized years ago from Comey’s friend and former attorney, Columbia Professor Daniel Richmond, during a previous leak investigation. According to the judge, the government exceeded the scope of the original warrants issued in that case and may have failed to properly screen out potentially privileged communications between Comey and Richmond before reusing that material in this new prosecution.
The judge also found that an FBI agent who testified before the grand jury had recently viewed potentially privileged Comey-Richmond communications. “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 DOJ practice,” Fitzpatrick wrote.
Furthermore, the judge criticized several statements made by Halligan to the grand jury. The specific lines are redacted, but, in one example, he said the government misstated the law in a way that implied Comey did not have a Fifth Amendment right not to testify. The U.S. Constitution protects a defendant’s right not to testify and jurors are not permitted to draw negative conclusions from that choice.
Judge Fitzpatrick concluded this combination of alleged errors and missteps warrant the rare step of releasing normally highly secret grand jury materials to a defendant.
Defending the Prosecutors
Attorney Mike Davis of the Article 3 Project disagreed, calling the judge’s ruling “nonsense” and “high irregular” in its own right in an X post on Monday.
“Magistrate Judge William Fitzpatrick–appointed by partisan DC-area Democrat judges in 2022–is going out of his way to carry water for James Comey. Fitzpatrickthr–through his highly irregular ruling–is grasping at straws to make his findings that Lindsey Halligan (somehow) did something wrong. She did not,” he wrote, in part. “They know the evidence against Comey is damning… they are doing everything they can to stop Lindsey Halligan.”
Prosecutors, meanwhile, challenged the decision by asking a separate judge to pause the order. “The government believes the magistrate judge may have misinterpreted some facts he found when issuing the latest order to release the grand jury materials to the defendant,” they wrote in a filing.
U.S. District Court Judge Michael Nockmanoff agreed to issue a stay on the order, alerting the feds to file their objections by the end of business on Wednesday and giving Comey’s team until Friday to respond to the government’s objections.
If Comey’s legal team is ultimately granted access to the grand jury materials, they are likely to use them in support of a motion to dismiss this case entirely. The former FBI director denies any wrongdoing and is pursuing several challenges aimed at getting the charges thrown out before trial, which is currently set for January.
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