This morning, we published my column arguing that the perjury and obstruction case against former FBI Director James Comey should be dismissed because there is no factual basis for the allegation that Comey lied when he denied authorizing his then-deputy, Andrew McCabe, to leak investigative information to the Wall Street Journal. (Contrary to the assertion of Senator Ted Cruz (R., Texas) in the question he put to Comey at a Senate hearing, McCabe, who has admitted orchestrating the leak, never claimed that Comey authorized him to do so — he claims to have told Comey about it after the fact.)

At the end of the column, I said that in a separate post I would “address the ridiculous perjury allegation for which interim U.S. attorney Lindsey Halligan sought an indictment only to be rebuffed by the grand jury.” Let’s turn to that.

When a grand jury declines to vote an indictment, that’s called a “no true bill.” In a prosecutor’s office in which the new lawyers are trained well, no true bills should be rarer than lightning strikes. In my nearly 20 years as an assistant U.S. attorney in the Southern District of New York, I could count on one hand the number of no true bills I remember hearing about and still have a finger or two left over.

Here’s why. While the prosecutor directs the grand jury process (in terms of questioning witnesses and giving the grand jurors instructions on the law applicable to the case), the grand jurors are in charge in the constitutional sense: The investigation is done under their auspices, and if they don’t approve charges, there is no triable case. Consequently, it is perfectly proper for prosecutors, when they believe they are finished presenting evidence but before proposing a draft indictment for the grand jury to vote on, to ask the grand jurors if they have concerns or would like to hear from any other potential witnesses before considering an indictment. That way, grand jurors who are troubled about something are invited to say so. If it appears that the grand jurors are unsatisfied with the case, the prosecutor doesn’t ask them to vote on a proposed indictment. Instead, prosecutors go back to their office, regroup, and figure out if they can shore up the case with better evidence; if not, the case is tabled.

You never ask the grand jury to vote when all signs indicate that they are going to vote a no true bill. It’s the prosecutor’s job to ferret out the signs.

Alas, Lindsey Halligan is a fairly young attorney (age 36) whose experience is insurance law in Florida. Before being installed this week to run one of the most important district U.S. attorney’s offices in the country (the Eastern District of Virginia), she had never been a prosecutor in a single criminal case in her career.

I’m tempted to say she was a novice in the criminal law because what I’ve read of her background doesn’t suggest she was ever a criminal defense lawyer. True, she was on the scene at Mar-a-Lago when the FBI executed the search warrant there in 2023 and — with Trump not at his residence at the time — she tried to protect his interests (although there’s not much even an experienced defense lawyer can do if the FBI has a warrant). But beyond that, I don’t think she functioned as a defense lawyer in the criminal cases against Trump. She’s a supporter, and when Trump won the 2024 election, he brought her onto the White House staff. It is not my purpose to be snarky here; she may be competent and effective in her field — I, by comparison, know nothing about insurance law and would be incompetent if I tried to start out with something complicated. I am just giving background that I believe is germane on the questions of how and why the no true bill happened.

It is being reported that Halligan ran Tuesday’s grand jury session herself. That is not advisable for a first-time prosecutor, even if she had experienced lawyers on hand to help. In most offices, a new prosecutor would be brought along to watch a few grand jury sessions before being assigned to conduct a simple one (say, a videorecorded hand-to-hand drug deal). And that would be with close supervision. A grand jury presentation is not like writing a contract or a brief. The prosecutor must deal with over a dozen laypeople, and many times unpredictable stuff happens.

In any event, Halligan obviously did not get a feel for the problems the grand jurors were having with the Comey case, and she asked them to vote without sensing their opposition to one of the charges. Remember: The statute of limitations would not have lapsed until next Tuesday, so she had time to take the grand jury’s temperature and, if there was discomfort with the case, to bring them back next week. (Sure, it’s risky to put things off until the last day, but it’s better to do that than get a no true bill, which is like making a public record that you lost control of the proceedings.)

So, what was the proposed perjury allegation that the grand jury ended up rejecting?

Earlier in the week, the Washington Post reported, based on unidentified sources said to be knowledgeable about the investigation, that prosecutors might pursue a perjury charge stemming from a line of questioning by Senator Lindsey Graham (R., S.C.), who presided over the September 30, 2020, Judiciary Committee hearing. The Post story explained:

[Senator Graham] asked whether Comey had been aware of an investigative referral that went to FBI leaders on Sept. 7, 2016, “regarding U.S. presidential candidate Hillary Clinton’s approval of a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private email server.”

Comey responded, “That doesn’t ring any bells with me,” which Graham called “stunning.”

This exchange did, in fact, form the gravamen of the originally proposed Count One. (And note: Prosecutors usually start the indictment with what they believe is their strongest allegation.) The proposed indictment stated in pertinent part that Comey had made a materially false statement by asserting that he “did not remember ‘being taught [sic]’ of PERSON 1’s ‘approval of a plan concerning’ PERSON 2 and the 2016 election.” [Emphasis added for reasons that will soon be clear.] Clearly, PERSON 1 and PERSON 2 referred to Hillary Clinton and Donald Trump, respectively. The proposed perjury charge elaborated that Comey knew what he said was false because he “then and there knew, he had in fact been provided information regarding PERSON 1’s approval of a plan concerning PERSON 2 and the 2016 U.S. Presidential election.”

Before moving on, I’d just note that I’ve searched the transcript and not found the word “taught,” though it is pled in the indictment. In the transcript I found online, Senator Graham is recorded as saying, “You don’t remember getting that or being talk [sic], that doesn’t –[.]” At that point, Comey interrupted, saying, “That doesn’t ring any bells with me.”  It is probably a garble between taught and talk, and maybe taught is in the official transcript while talk is in the online transcript I found. In either event, though, it’s not very clear what Graham was saying. That’s a problem because the burden in a perjury case is always on the questioner, not the witness, to clarify the record. If the question is not clear, it becomes impossible to prove beyond a reasonable doubt that the witness intended to answer falsely.

Now, it so happens that I watched the Senate Judiciary Committee hearing in real time and was struck by the Graham/Comey exchange. I wrote about it, here. To me, the two men seemed like ships passing in the night. If you’ve been in a lot of trials and questioned a lot of witnesses, you get a sense when interrogators and witnesses are not in sync.

At the time of Comey’s 2020 testimony, Republicans were not just hot to grill the former FBI director Trump had fired. They were also pushing a political narrative that Hillary Clinton’s conduct during the 2016 campaign — specifically, her peddling of the claim that Trump was in cahoots with the Kremlin — was so malevolent that even the Obama administration believed it might be criminal.

Shortly before Comey testified, then-President Trump’s national intelligence director, John Ratcliffe, disseminated previously classified documents revealing that (a) U.S spy agencies had discovered that their Russian counterparts were aware that Clinton was planning to push a narrative that Trump and Putin were collaborating, which the Clinton campaign hoped would distract attention from her own email scandal; and (b) Obama’s then-CIA director, John Brennan, had communicated this information within the Obama administration, including in a communication to the FBI.

In order to imply a perception of criminality, Ratcliffe and Republicans repeatedly described this communication as a “referral.” But it was not a referral in the commonly understood sense of a criminal referral — i.e., our term for a federal agency’s communication to law enforcement (usually the FBI or DOJ) that the agency believes someone’s conduct warrants further investigation and potential prosecution. Brennan was not making a criminal referral of Hillary Clinton; rather, he was simply referring the information to the FBI and other Obama officials so everyone would be aware that the Russians appeared to know Clinton’s plan was to portray Trump as a Kremlin mole. Brennan, like Obama, wanted Clinton to win and Trump to be criminally investigated; the last thing he had in mind was a criminal referral of Clinton.

Theatrically, Senator Graham claimed to be astonished at what he portrayed as Comey’s feigned ignorance of the intelligence that Clinton was going to smear Trump. Yet, Comey wasn’t saying he’d never heard such information. He was saying he didn’t recall ever hearing that there was a criminal referral related to that information. That’s a very different thing.

It could be that Graham’s question, as related in the indictment, was so garbled and hard to follow that the grand jury wouldn’t premise a perjury charge on it. But it could also be that the grand jury understood the distinction between (a) claiming falsely one has never heard information (which is not what Comey did), and asserting that one can’t recall hearing about a referral regarding that information (which is what Comey did and appears to be true).

These problems and distinctions should have been clear to Lindsey Halligan. Apparently, they weren’t.