prosecution

ALEXANDRIA, Va. — The Justice Department acknowledged in court Wednesday the grand jury that charged former FBI Director James Comey was not presented with a copy of the final indictment, a concession that may further imperil a prosecution already subject to multiple challenges and demands for its dismissal.

The revelation is the latest indication of a troubled presentation of the case to the grand jury by an inexperienced and hastily appointed U.S. attorney named to the job just days earlier by President Trump.

Concerns about the process surfaced earlier in the week when a different judge in the case said there was no record in the transcript he had reviewed of the grand jury reviewing the indictment that was actually presented against Comey.

Lindsey Halligan, the interim U.S. attorney in charge of the case, said under questioning that only the foreperson of the grand jury and a second grand juror were present for the returning of the indictment.

Comey has pleaded not guilty to charges accusing him of making a false statement and obstructing Congress and has denied any wrongdoing.

The Justice Department has denied that the prosecution was vindictive or selective and insists that the allegations support the indictment.

Trump fired Comey as FBI director in May 2017 as Comey was overseeing an FBI investigation into potential ties between Russia and Trump’s 2016 campaign. The two have been publicly at odds ever since, with Trump deriding Comey as “a weak and untruthful slime ball” and calling for his prosecution.

Tucker and Kunzelman write for the Associated Press.

In the days and weeks after the 2020 election, partisans across the country used lies and deceit to try to defraud the American people and steal the White House.

Although Joe Biden was the clear and unequivocal winner, racking up big margins in the popular vote and electoral college, 84 fake electors signed statements certifying that Donald Trump had carried their seven battleground states.

He did not.

The electoral votes at issue constituted nearly a third of the number needed to win the presidency and would have been more than enough to reverse Biden’s victory, granting Trump a second term against the wishes of most voters.

To some, the attempted election theft is old (and eagerly buried) news.

The events that culminated in the violent assault on the Capitol and attempt to block Biden from taking office occurred half a decade ago, the shovel wielders might say, making them as relevant as those faded social-distancing stickers you still see in some stores. Besides, Trump was given a second turn in the White House by a plurality of voters in 2024.

But it’s only old news if you believe that justice and integrity carry an expiration date, wrongdoing is fine with the passage of enough time and the foundational values of our country and its democracy — starting with fair and honest elections — matter only to the extent they help your political side prevail.

It bears repeating: “What we’re talking about here is an attempt to overturn the outcome of a presidential election,” said Sean Morales-Doyle, who heads the Voting Rights and Elections Program at the Brennan Center for Justice, a law and policy think tank at New York University. “If people can engage in that kind of conduct without consequence or accountability, then we have to worry about it happening again.”

Which is why punishment and deterrence are so important.

Last week, the Nevada Supreme Court unanimously reinstated the criminal case against six Republicans who signed certificates falsely claiming Trump had won the state’s electoral votes. Those charged include Nevada’s GOP chairman, Michael McDonald, and the state’s representative on the Republican National Committee, Jim DeGraffenreid.

The ruling focused on a procedural matter: whether the charges should have been brought in Douglas County, where the fake certificates were signed in the state capital — Carson City — or in Clark County, where they were submitted at a courthouse in Las Vegas. A lower court ruled the charges should have been brought in Douglas County and dismissed the case. The high court reversed the decision, allowing the prosecution on forgery charges to proceed.

As well it should. Let a jury decide.

Of course, the Nevada Six and other phony electors are but small fry. The ringleader and attempted-larcenist-in-chief — Donald “Find Me 11,780 Votes” Trump — escaped liability by winning the 2024 election.

This month, he pardoned scores of fake electors and others involved in the attempted election heist — including his bumbling ex-attorney, Rudolph W. Giuliani — for any potential federal crimes. The move was purely symbolic; Trump’s pardoning power does not extend to cases brought in state courts.

But it was further evidence of his abundant contempt for the rule of law. (Just hours after taking office, Trump pardoned nearly 1,600 defendants — including some who brutalized cops with pepper spray and wooden and metal poles — who were involved in the Jan. 6, 2021, attack on the Capitol.)

Efforts around the country to prosecute even those low-level schemers, cheaters and 2020 election miscreants have produced mixed results.

In Michigan, a judge threw out the criminal case against 15 phony electors, ruling the government failed to present sufficient evidence that they intended to commit fraud.

In New Mexico and Pennsylvania, fake electors avoided prosecution because their certification came with a caveat. It said the documentation was submitted in the event they were recognized as legitimate electors. The issue was moot once Trump lost his fight to overturn the election, though some in Trump’s orbit hoped the phony certifications would help pressure Pence.

Derek Muller, a Notre Dame law professor, looks askance at many of the cases that prosecutors have brought, suggesting the ballot box — rather than a courtroom — may be the better venue to litigate the matter.

“There’s a fine line between what’s distasteful conduct and what’s criminal conduct,” Muller said. “I don’t have easy answers about which kinds of things should or shouldn’t be prosecuted in a particular moment, except to say if it’s something novel” — like these 2020 cases — “having a pretty iron-clad legal theory is pretty essential if you’re going to be prosecuting people for engaging in this sort of political protest activity.”

Other cases grind on.

Three fake electors are scheduled for a preliminary hearing on forgery charges next month in Wisconsin. Fourteen defendants — including Giuliani and former White House Chief of Staff Mark Meadows — face charges in Georgia. In Arizona, the state attorney general must decide this week whether to move forward with a case against 11 people after a judge tossed out an indictment because of how the case was presented to grand jurors.

Justice in the case of the 2020 election has been far from sure and swift. But that’s no reason to relent.

The penalty for hijacking a plane is a minimum of 20 years in federal prison. That seems excessive for the fake electors.

But dozens of bad actors tried to hijack an election. They shouldn’t be let off scot-free.

WASHINGTON — The Justice Department engaged in a “disturbing pattern of profound investigative missteps” in the process of securing an indictment against former FBI Director James Comey, a federal judge ruled Monday in directing prosecutors to provide defense lawyers with all grand jury materials from the case.

Those problems, wrote Magistrate Judge William Fitzpatrick, include “fundamental misstatements of the law” by a prosecutor to the grand jury that indicted Comey in September, the use of potentially privileged communications during the investigation and unexplained irregularities in the transcript of the grand jury proceedings.

“The Court recognizes that the relief sought by the defense is rarely granted,” Fitzpatrick wrote “However, the record points to a disturbing pattern of profound investigative missteps, missteps that led an FBI agent and a prosecutor to potentially undermine the integrity of the grand jury proceeding.”

The 24-page opinion is the most blistering assessment yet by a judge of the Justice Department’s actions leading up to the Comey indictment. It underscores how procedural missteps and prosecutorial inexperience have combined to imperil the prosecution pushed by President Trump for reasons separate and apart from the substance of the disputed allegations against Comey.

The Comey case and a separate prosecution of New York Atty, Gen. Letitia James have heightened concerns that the Justice Department is being weaponized in pursuit of Trump’s political opponents. Both defendants have filed multiple motions to dismiss the cases against them before trial, arguing that the prosecutions are improperly vindictive and that the prosecutor who filed the charges, Lindsey Halligan, was illegally appointed.

A different judge is set to decide by Thanksgiving on the challenges by Comey and James to Halligan’s appointment.

Though grand jury proceedings are presumptively secret, Comey’s lawyers had sought records from the process out of concern that irregularities may have tainted the case. The sole prosecutor who defense lawyers say presented the case to the grand jury was Halligan, a former White House aide with no prior prosecutorial experience who was appointed just days before the indictment to the job of interim U.S. attorney for the Eastern District of Virginia.

In his order Monday, Fitzpatrick said that after reviewing the grand jury transcript himself, he had come away deeply concerned about the integrity of the case.

“Here, the procedural and substantive irregularities that occurred before the grand jury, and the manner in which evidence presented to the grand jury was collected and used, may rise to the level of government misconduct resulting in prejudice to Mr. Comey,” Fitzpatrick said.

The Justice Department responded to the ruling by asking that it be put on hold to give prosecutors time to file objections. The government said it believed Fitzpatrick “may have misinterpreted” some facts in issuing his ruling.

Fitzpatrick listed, among nearly a dozen irregularities in his ruling, two comments that a prosecutor — presumably, Halligan — made to the grand jury that he said represented “fundamental misstatements of the law.”

The actual statements are blacked out, but Fitzpatrick said the prosecutor seems to have ignored the fact that a grand jury may not draw a negative inference about a person who exercises his right not to testify in front of it. He said she also appeared to suggest to grand jurors that they did not need to rely only on what was presented to them and could instead be assured that there was additional evidence that would be presented at trial.

The judge also drew attention to the jumbled manner in which the indictment was obtained and indicated that a transcript and recording of the proceedings do not provide a full account of what occurred. Halligan initially sought a three-count indictment of Comey, but after the grand jury rejected one of the three proposed counts and found probable cause to indict on the other two counts, a second two-count indictment was prepared and signed.

But Fitzpatrick said it was not clear to him in reviewing the record that the indictment that Halligan presented in court at the conclusion of the process had been presented to the grand jury for its deliberation.

“Either way, this unusual series of events, still not fully explained by the prosecutor’s declaration, calls into question the presumption of regularity generally associated with grand jury proceedings, and provides another genuine issue the defense may raise to challenge the manner in which the government obtained the indictment,” he wrote.

The two-count indictment charges Comey with lying to Congress in September 2020 when he suggested under questioning that he had not authorized FBI leaks of information to the news media. His lawyers say the question he was responding to was vague and confusing but the answer he gave to the Senate Judiciary Committee was true.

The line of questioning from Sen. Ted Cruz appeared to focus on whether Comey had authorized his former deputy director, Andrew McCabe, to speak with the news media. But since the indictment, prosecutors have made clear that their indictment centers on allegations that Comey permitted a separate person — a close friend and Columbia University law professor, Dan Richman — to serve as an anonymous source in interactions with reporters.

The FBI executed search warrants in 2019 and 2020 to access messages between Richman and Comey as part of a media leaks investigation that did not result in charges. But Fitzpatrick said he was concerned that communications between the men that might have been protected by attorney-client privilege — Richman was at one point functioning as a lawyer for Comey — were exposed to the grand jury without Comey having had an opportunity to object.

Tucker writes for the Associated Press.

ATLANTA — The fate of the Georgia election interference case against President Trump and others is now in the hands of a new prosecutor who has to decide how he is going to move forward with the sprawling indictment.

After courts removed Fulton County Dist. Atty. Fani Willis over an “appearance of impropriety” created by a romantic relationship with the special prosecutor she had chosen to lead the case, it was up to the Prosecuting Attorneys’ Council of Georgia to name someone to take over. Council Executive Director Pete Skandalakis said Friday that he would handle the case himself after he was unable to find anyone else willing to do it.

The indictment against Trump and 18 others was returned by a grand jury in August 2023 and uses the state’s anti-racketeering law to allege a wide-ranging conspiracy to illegally overturn Trump’s narrow loss to Democrat Joe Biden in Georgia in the 2020 election.

Here are some things to know about Skandalakis and what might come next for this prosecution.

How did Skandalakis end up with this case?

When a prosecutor recuses or is removed from a case in Georgia, the executive director of the nonpartisan Prosecuting Attorneys’ Council steps in to appoint a substitute prosecutor. Skandalakis, who has led the agency since January 2018, said in an emailed statement that he contacted several prosecutors about taking over the election interference case and they all declined.

The judge overseeing the case had said that if a new prosecutor wasn’t appointed by Friday, he would dismiss the case. Skandalakis said that while he could easily have let the judge’s deadline pass without appointing anyone and allowed the case to be dismissed, he “did not believe that to be the right course of action.”

He acknowledged that he had not had a chance to fully review the case, having only recently received from Willis’ office 101 boxes of documents and an eight-terabyte hard drive with the full investigative file. Appointing himself to the case, he said, “will allow me to complete a comprehensive review and make an informed decision regarding how best to proceed.”

Prior to his time at the council, Skandalakis spent about 25 years as the elected Republican district attorney for the Coweta Judicial Circuit, southwest of Atlanta. But former Gwinnett County Dist. Atty. Danny Porter, who has known Skandalakis for more than 40 years, said they shared a philosophy that the district attorney’s office should be nonpartisan.

“I wouldn’t put too much weight on the fact that he ran as a Republican,” Porter said. “I feel certain that he’s going to do what he said he’s going to do and give it a fair and transparent review and come to conclusions based on the law and the facts.”

Skandalakis is no stranger to sensitive high-profile cases. He took on the investigation into the June 2020 shooting death of Rayshard Brooks, a Black man, by a white police officer after Willis recused her office from the case. He ultimately decided that the two officers involved had acted reasonably, and he declined to pursue charges.

What happens next?

Skandalakis will continue to review the case file to decide how he wants to proceed. The judge has set a Dec. 1 status hearing and said the prosecution should be prepared to say at that time whether it intends to seek a new indictment.

Skandalakis has declined to comment beyond the statement he released Friday. But Porter, who has served as a substitute prosecutor, said the first step is generally to get the case filed, which Skandalakis has done. Then, Porter said, it is not improper to have a discussion with the removed prosecutor about their summary of the case, but that should be the last contact between the two prosecution teams about the case.

Then the substitute prosecutor would start from scratch, figuring out how the case is organized, determining the budget and resources needed and figuring out how to handle it.

The size of this case makes all that a “nearly impossible task for one person to do,” Porter said. While Skandalakis has a “great staff” with some really talented prosecutors, they all have other cases on their plates.

The Prosecuting Attorneys’ Council has a tight budget, and the state Legislature is dominated by Republicans, many loyal to Trump, who are unlikely to grant any special appropriations for this prosecution. But Skandalakis could look for money elsewhere to hire contract attorneys and cover other expenses, Porter said.

Then Skandalakis will have to decide whether he wants to continue on the course that Willis had charted, pursue only some of the charges or dismiss the case.

“I think the case as it’s indicted is completely untryable,” Porter said, adding that he would try to slim it down, either by seeking a new indictment or asking the judge to sever some counts to break it down into smaller cases, Porter said.

What is in the indictment?

The indictment includes charges related to a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger during which Trump urged the state’s top elections official to help him “find” the votes he needed to win. Other charges have to do with a getting a slate of Republican electors to falsely declare that Trump won the state, allegations of harassment of a Georgia election worker and a breach of election equipment in a rural south Georgia county.

Four of the 19 people charged pleaded guilty after reaching deals with prosecutors in the months following the indictment. Trump and the other 14 people charged have all pleaded not guilty. It seems unlikely that any action against Trump could proceed while he is in office — given U.S. Justice Department policy and a Supreme Court ruling that shield a president from prosecution — but the others do not have that protection.

Brumback writes for the Associated Press.

NEW YORK — A federal appeals court on Thursday gave new life to President Trump’s bid to erase his hush money conviction, ordering a lower court to reconsider its decision to keep the case in state court instead of moving it to federal court.

A three-judge panel in the 2nd U.S. Circuit Court of Appeals ruled that U.S. District Judge Alvin Hellerstein erred by failing to consider “important issues relevant” to Trump’s request to move the New York case to federal court, where he can seek to have it thrown out on presidential immunity grounds.

But, the appeals court judges said, they “express no view” on how Hellerstein should rule.

Hellerstein, who was nominated by Democratic President Bill Clinton, twice denied Trump’s requests to move the case. The first time was after Trump’s March 2023 indictment; the second followed Trump’s May 2024 conviction and a subsequent U.S. Supreme Court ruling that presidents and former presidents cannot be prosecuted for official acts.

In the later ruling, at issue in Thursday’s decision, Hellerstein said Trump’s lawyers had failed to meet the high burden of proof for changing jurisdiction and that Trump’s conviction for falsifying business records involved his personal life, not official actions that the Supreme Court ruled are immune from prosecution.

Hellerstein’s ruling, which echoed his previous denial, “did not consider whether certain evidence admitted during the state court trial relates to immunized official acts or, if so, whether evidentiary immunity transformed” the hush money case into one that relates to official acts, the appeals court panel said.

The three judges said Hellerstein should closely review evidence that Trump claims relate to official acts.

If Hellerstein finds the prosecution relied on evidence of official acts, the judges said, he should weigh whether Trump can argue those actions were taken as part of his White House duties, whether Trump “diligently sought” to have the case moved to federal court and whether the case can even be moved to federal court now that Trump has been convicted and sentenced in state court.

Ruling came after oral arguments in June

Judges Susan L. Carney, Raymond J. Lohier Jr. and Myrna Pérez made their ruling after hearing arguments in June, when they spent more than an hour grilling Trump’s lawyer and the appellate chief for Manhattan District Attorney Alvin Bragg’s office, which prosecuted the case and wants it to remain in state court.

Carney and Lohier were nominated to the court by Democratic President Barack Obama. Pérez was nominated by Democratic President Joe Biden.

“President Trump continues to win in his fight against Radical Democrat Lawfare,” a spokesperson for Trump’s legal team said in a statement. “The Supreme Court’s historic decision on Immunity, the Federal and New York State Constitutions, and other established legal precedent mandate that the Witch Hunt perpetrated by the Manhattan DA be immediately overturned and dismissed.”

Bragg’s office declined to comment.

Trump was convicted in May 2024 of 34 felony counts of falsifying business records to conceal a hush money payment to adult film actor Stormy Daniels, whose allegations of an affair with Trump threatened to upend his 2016 presidential campaign. Trump denies her claim, said he did nothing wrong and has asked a state appellate court to overturn the conviction.

It was the only one of the Republican’s four criminal cases to go to trial.

Trump team cites Supreme Court ruling on presidential immunity

In trying to move the hush money case to federal court, Trump’s lawyers argued that federal officers, including former presidents, have the right to be tried in federal court for charges arising from “conduct performed while in office.” Part of the criminal case involved checks that Trump wrote while he was president.

Trump’s lawyer, Jeffrey Wall, argued that prosecutors rushed to trial instead of waiting for the Supreme Court’s presidential immunity decision. He also said they erred by showing jurors evidence that should not have been allowed under that ruling, such as former White House staffers describing how Trump reacted to news coverage of the hush money deal and tweets he sent while president in 2018.

“The district attorney holds the keys in his hand,” Wall told the three-judge panel in June. “He doesn’t have to introduce this evidence.”

In addition to reining in prosecutions of ex-presidents for official acts, the Supreme Court’s July 2024 ruling restricted prosecutors from pointing to official acts as evidence that a president’s unofficial actions were illegal.

Wall, a former acting U.S. solicitor general, called the president “a class of one,” telling the judges that “everything about this cries out for federal court.”

Steven Wu, the appellate chief for the district attorney’s office, countered that Trump was too late in seeking to move the case to federal court. Normally, such a request must be made within 30 days of an arraignment. Exceptions can be made if “good cause” is shown.

Hellerstein concluded that Trump hadn’t shown “good cause” to request a move to federal court as such a late stage. But the three-judge panel on Thursday said it “cannot be confident” that the judge “adequately considered issues” relevant to making that decision.

Wall, addressing the delay at oral arguments, said Trump’s team did not immediately seek to move the case to federal court because the defense was trying to resolve the matter by raising the immunity argument with the trial judge, Juan Merchan.

Merchan rejected Trump’s request to throw out the conviction on immunity grounds and sentenced him Jan. 10 to an unconditional discharge, leaving his conviction intact but sparing him any punishment.

Sisak writes for the Associated Press.

Zohran Mamdani, the progressive standard-bearer who could become New York City’s next mayor after Tuesday’s election, faces a public-safety trap that has entangled progressives nationwide: Voters want less cruelty, not less accountability. Confuse the two, and even progressives will vote you out.

Even before he has taken office, Mamdani is already fending off attacks from opponents, including former Gov. Andrew Cuomo and other political adversaries. They seek to brand him as a radical by tying him to the national Democratic Socialists of America’s most controversial criminal justice planks, such as declining to prosecute misdemeanor offenses.

Yet, in distancing himself from those specific policies, Mamdani is cleverly navigating a political minefield that has doomed other reformers. His strategy demonstrates a crucial lesson for the broader progressive movement: voters want a less inhumane justice system, not one that is unenforced. If progressives are perceived as abandoning accountability for offenses like shoplifting and public drug usage, they invite a political backlash that will not only cost them elections (or reelections) but also set back the cause of reform nationwide.

Americans across the political spectrum support reducing extremely harsh punishments. They want shorter sentences, alternatives to incarceration and rehabilitation over punishment. The moral case against excessive punishment resonates with voters who see our system as unnecessarily cruel. The evidence is overwhelming: 81% of Americans believe the U.S. criminal justice system needs reform, and 85% agree the main goal of our criminal justice system should be rehabilitation.

But when it comes to deciding which behaviors deserve prosecution, the politics shift dramatically. Mamdani has previously aligned with the Democratic Socialists of America, an organization that calls for ending the enforcement of some misdemeanor offenses.

This is precisely the kind of stance that can trigger backlash. The 2022 recall of San Francisco’s progressive district attorney shows why. About 1 in 3 “progressive” voters cast a ballot to remove the progressive DA from office. It wasn’t because they disagreed with his policies; in fact, these same voters supported his specific reforms when his name wasn’t attached to them. Their opposition was rooted in a fear that declining to prosecute low-level crimes would create a deterrence vacuum and incentivize lawlessness.

In Los Angeles, George Gascón’s trajectory offers a cautionary tale. As Los Angeles County district attorney, he survived two recall attempts before losing his 2024 reelection bid by 23 points. L.A. voters hadn’t abandoned reform — they’d supported it just four years earlier. But Gascón’s categorical bans on seeking certain harsher sentences or charging juveniles as adults triggered a revolt from his own rank-and-file prosecutors, creating the perception that entire categories of misconduct would go unaddressed. When prosecutors publicly sued him, arguing his directives violated state law, the deterrence vacuum became tangible. By the time Gascón walked back some policies, voters’ trust had evaporated.

This pattern repeats across the country. In Boston, DA Kevin Hayden has distanced himself so forcefully from predecessor Rachael Rollins’ “do not prosecute” list that he bristles at reporters even mentioning it. Yet Hayden’s office is still diverting first-time shoplifters to treatment programs — the same approach Rollins advocated. The difference? Hayden emphasizes prosecution of repeat offenders while offering alternatives to first-timers. The policy is nearly identical; the politics couldn’t be more different.

Critics are right to argue that the old model of misdemeanor prosecution was a failure. It criminalized poverty and addiction, clogged our courts and did little to stop the revolving door. But the answer to a broken system is not to create a vacuum of enforcement; it is to build a new system that pairs accountability with effective intervention.

Mamdani has already shown political wisdom by declaring, “I am not defunding the police.” But the issue isn’t just about police funding — it’s about what behaviors the criminal justice system will address. As mayor, Mamdani would not control whether the prosecutors abandon prosecution of misdemeanors, but what matters are his stances and voters’ perception. He should be vocal about how we thinks prosecutors should respond to low-level offenses:

• First-time shoplifters: Restitution or community service.
• Drug possession: Treatment enrollment, not incarceration.
• Quality-of-life violations: Social service interventions for housing and health.
• DUI offenders: Intensive supervision and treatment.

To be clear, this isn’t about ignoring these offenses; it’s about transforming the response. For this to work, the justice system must use its inherent leverage. Instead of compelling jail time, a pending criminal case becomes the tool to ensure a person completes a treatment program, pays restitution to the store they stole from, or connects with housing services. This is the essence of diversion: Accountability is met, the underlying problem is addressed, and upon successful completion, the case is often dismissed, allowing the person to move forward without the lifelong burden of a criminal record.

Mamdani’s proposed Department of Community Safety is a step in the right direction. But it must work alongside, not instead of, prosecution for lower-level offenses, and Mamdani must frame it as a partner to prosecution. If voters perceive it as a substitute for accountability, his opponents will use it as a political weapon the moment crime rates fluctuate.

New York deserves bold criminal justice reform. But boldness without pragmatism leads to backlash that sets the entire movement back. The future of the criminal justice progressive movement in America will not be determined by its ideals, but by its ability to deliver pragmatic safety. For the aspiring mayor, and for prosecutors in California and beyond, this means understanding that residents want both order and compassionate justice.

Dvir Yogev is a postdoctoral researcher at the Criminal Law & Justice Center at UC Berkeley, where he studies the politics of criminal justice reform and prosecutor elections.