By Andrew Goudsward and Sarah N. Lynch
ALEXANDRIA, Virginia (Reuters) -A U.S. judge on Wednesday repeatedly questioned the validity of the grand jury indictment of former FBI Director James Comey secured by a prosecutor closely aligned with President Donald Trump in the latest signal that the charges may be dismissed before trial.
After repeated questioning by U.S. District Judge Michael Nachmanoff, prosecutors acknowledged that the final version of the indictment was never presented to the entire grand jury that approved the charges after panel members previously rejected one of the proposed criminal counts.
Lawyers for Comey, one of three prominent critics of the Republican president indicted by Trump's Justice Department in recent months, used a 90-minute hearing in Alexandria, Virginia, to argue for throwing out the indictment ahead of the trial, currently scheduled for January.
Defense lawyer Michael Dreeben told Nachmanoff the procedural error acknowledged by the prosecution regarding the indictment was yet another reason for dismissal. Comey pleaded not guilty after being charged in September with making false statements and obstructing a congressional investigation.
A ruling by Nachmanoff to dismiss the case would be a major embarrassment for Trump's administration and would highlight a growing wave of skepticism within the judiciary about his efforts to prosecute political enemies.
The hearing focused on Comey's argument that he is the target of an improper "vindictive" prosecution brought solely to punish him for his criticism of the president, who fired him in 2017 amid an FBI investigation into contacts between Trump's 2016 election campaign and Russians.
Dreeben during the hearing called the case "a blatant use of criminal justice to achieve political ends."
The actions of Lindsey Halligan, the Trump ally serving as U.S. Attorney for the Eastern District of Virginia, were in the spotlight during the hearing. In a tense but brief exchange, Nachmanoff posed questions directly to Halligan asking her to explain what version of the indictment was presented to the grand jury and who was present.
Prosecutors in a Wednesday evening court filing sought to downplay the significance of the technical dispute over the Justice Department's handling of the indictment, arguing that it was not grounds for dismissing Comey's case.
The filing said the proposed indictment that was shown to the grand jury contained three criminal counts, two of which the panel approved. After the panel declined to indict Comey on one of the charges, prosecutors dropped that count from the indictment, but did not change the language of the other charges when they prepared a subsequent two-count indictment, it said. That version was signed by the jury foreperson but not seen by the full grand jury, prosecutors wrote in their filing.
A VOW OF RETRIBUTION
Trump campaigned for the presidency last year in part on a vow of retribution and has demanded action against high-profile figures who have investigated or criticized him. Trump's Justice Department also has charged New York state Attorney General Letitia James, an elected Democrat, and John Bolton, Trump's former national security adviser. Trump critics have described these cases and the one against Comey as a part of a campaign by the president to chill opposition.
The prosecution has accused Comey of lying to a Senate committee when he said he stood behind prior testimony denying that he authorized disclosures about FBI investigations to the news media.
Comey has launched a multi-pronged effort to have the charges dismissed before a trial.
His lawyers pointed to Trump's years of social media broadsides against Comey dating to his firing in 2017. Comey later called Trump unfit for office.
Defense lawyers have cited Trump's decision to name Halligan, his former personal lawyer who had no prior prosecutorial experience, as the interim U.S. attorney to take over the case against Comey after her predecessor was forced out in part over reluctance to bring charges.
During arguments, Dreeben focused in particular on a September 20 social media post that Trump addressed to U.S. Attorney General Pam Bondi expressing frustration that "nothing is being done" to prosecute Comey and other political foes.
Trump's post was "effectively an admission that this is a political prosecution," Dreeben said.
Justice Department lawyer Tyler Lemons, who handled most of the arguments for the prosecution, told the judge that Comey "was not indicted at the direction of the president of the United States or any other government official."
Lemons said Comey had not cleared the high legal bar to let courts second-guess charging decisions by prosecutors.
Nachmanoff pressed Lemons on whether career prosecutors in the U.S. attorney's office had drafted a memo laying out why Comey should not be charged. Lemons declined to confirm whether one existed, saying Deputy Attorney General Todd Blanche's office had not given him permission to disclose those details because they are privileged.
A different judge - U.S. District Judge Cameron McGowan Currie - has expressed skepticism that Halligan was lawfully appointed as interim U.S. attorney, and is expected to rule on the issue before the Thanksgiving holiday on November 27.
Meanwhile, U.S. Magistrate Judge William Fitzpatrick, tasked with deciding certain pretrial issues in Comey's case, indicated in a ruling this week that Halligan may have made significant legal errors before the grand jury.
(Reporting by Andrew Goudsward and Sarah N. Lynch; Additional reporting by Jan Wolfe;Editing by Scott Malone, Bill Berkrot, Will Dunham and Deepa Babington)
