Earlier this week, after the court appearance in which former FBI Director Jim Comey was arraigned on the Trump DOJ’s indictment, charging him with making a false statement to and obstructing Congress, I opined that prosecutors appeared to be less than eager to try the case. The Eastern District of Virginia (EDVa), known nationally as the “rocket docket” for its unusual speed in getting criminal cases to trial, is a bad place for that state of mind.
Normally, EDVa prosecutors would never file charges unless they were ready to go because they know the pace of the place. But here, there really are no EDVa prosecutors. President Trump fired the experienced EDVa interim U.S. attorney he’d appointed, Erik Siebert, because Siebert declined to charge Trump bugaboos Comey and Letitia James; the president has installed Lindsey Halligan, his former personal lawyer.
Putting aside the very real questions about the legality of Halligan’s appointment, she is not an experienced criminal law practitioner and had never prosecuted a case until personally handling Comey’s grand jury proceeding (and this week, James’s, to the apparent surprise of Main Justice). The 36-year-old Halligan was an insurance lawyer in Florida and a Trump White House staffer. She has brought in two prosecutors from North Carolina to handle to Comey case — but they are new to the investigative file and to the EDVa.
Judge Michael Nachmanoff, the Biden appointee presiding over the case, rebuffed the prosecutors’ request for a lengthy delay so they could get up to speed. As I’ve observed on many occasions, the only things in a case that prosecutors can completely control (at least most of the time) are whether and when to bring charges. Hence, you should never charge until you are ready to provide discovery, litigate pretrial motions, and try the case because it’s the court, not the prosecutor, who decides the schedule at that point. Here, of course, the prosecutors’ hands were forced because Trump demanded that Attorney General Bondi get the case charged when it was up against the statute of limitations deadline.
Judge Nachmanoff has set a schedule that anticipates the first round of defense pretrial motions by October 20 (i.e., just a week from Monday), with the second and final round of motions due ten days later. Under Nachmanoff’s standard order, prosecutors must provide discovery within five days of the motions date. Yet, Comey’s lawyer, Patrick Fitzgerald, alerted the court Friday afternoon that, as of the end of this week, the prosecution had provided just one page of discovery and was taking the position that it needn’t provide discovery until five days before the October 30 date for the second set of motions (i.e., until October 25), even though the discovery will obviously bear on the motions Comey has to file by October 20. In an order last night, the judge made clear that the government must provide discovery by October 15 — i.e., next Wednesday, or five days before the first motion date.
The first round of defense motions will involve at least some aimed at dismissing the indictment, including selective prosecution. By the end of motion practice, Comey also anticipates seeking dismissal based on the following contentions, among others: (a) literal truth — i.e., that the testimony he gave was true and is, objectively, a more accurate version of the relevant events than the government’s competing version (which prosecutors have not yet explained — having reportedly not yet even informed the defense of the identities of “Person 1” and “Person 3” in the indictment); (b) outrageous government misconduct (presumably related to Trump’s interventions); (c) grand jury abuse; (d) the insufficiency of the indictment; and (e) the illegality of Halligan’s appointment as interim U.S. attorney.
The government will have about two weeks to reply to each set of defense motions (i.e., November 3 and 13); there will be a week for defense reply briefs (i.e., November 10 and 20); and the court has scheduled hearings on the motions — November 19 for the first set and December 9 for the second.
The trial is scheduled to commence with jury selection on January 5, 2026. It is expected to last two to three days.
To get you caught up on the background, here are my recent posts, including the series on issues arising out of this week’s arraignment:
The Indictment Against Comey Should Be Dismissed
The False-Statement Count the Grand Jury Rejected
The More You Look, the Worse the Indictment Gets
Can DOJ Fix the Indictment’s Flaws?
Arraignment Developments Series: One, Two, Three, Four, and Five.
Statute of Limitations Not a Bar to New Indictment If Current One Dismissed.
Rich and I discussed the Comey case on the podcast here, here, and here. The Editors took it up here. Also, see our editorial, Jim’s Jolt, and a news report by Brittany and James.