Don't get me wrong - the indictment can and should be dismissed based on Halligan misrepresenting the law during her presentation to the grand jury and on malicious and vindictive prosecution grounds.
But despite what some folks are suggesting, the fact that the 2 count version of the indictment wasn't presented to the entire grand jury is unlikely to be the basis for dismissal and such a dismissal probably would be reversed on appeal.
The Grand Jury initially reviewed and voted on a three count indictment presented to them. They concurred in counts 2 and 3, but not count 1. The 3 count version was signed, but at the same time, reflecting the rejection of count 1, the foreperson completed a standard form that is presented to grand juries called the Report of Grand Jury's Failure to Concur in an Indictment, on which they indicated that only Count 1 was rejected to which they attached a copy of the three count indictment.
https://storage.courtlistener.com/recap/gov.uscourts.vaed.582136/gov.uscourts.vaed.582136.3.0_8.pdf
The failure to go back in front of the full grand jury with a re-typed indictment that only contained counts 2 and 3 -- renumbered as counts 1 and 2 -- was an error. But it was not a substantive error it was a procedural errors and procedural errors don't result in the dismissal of indictments. Indeed, even if it did result in the dismissal of the indictment, a new indictment could be sought even though the statute of limitations had expired in the meantime.
The standard for judging an error in the presentation of an indictment is whether the error is substantive in nature. In this instance, the grand jury as a whole approved counts 2 and 3 on the original indictment and indicated their rejection of count 1. The revised version dropped count 1, renumbered counts 2 and 3 as counts 1 and 2 but otherwise made no changes to those two counts. As a leading case regarding changes to indictments indicated "withdrawing a part of the charge from jury consideration does not work an amendment if nothing is thereby added to the indictment." Or as stated in another leading case, "Withdrawal that narrows the defendant's liability is permissible, so long as the remaining allegations state an offense and give the defendant notice of the charges he must be prepared to meet. Because counts 2 and 3, albeit renumbered, are identical to those counts as presented in the 3 count indictment that the full grand jury voted on, the revised indictment gives Comey notice of the charges being brought against him.
I'll be happy to be proven wrong, and while the proper procedure would have been for Halligan to return to the grand jury with a re-typed version of the indictment that deleted count 1, or for her to file a motion with the court asking for it to amend the original three count indictment to remove the count that the grand jury had rejected, I just don't see this being the reason for dismissing the indictment.
= new reply since forum marked as read
