Grand Jury Master Class – Update for November 26, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A ‘HOW TO’ MANUAL FOR GETTING GRAND JURY MATERIALS (IT AIN’T EASY)

Watching Eastern District of Virginia US Attorney Lindsey Halligan make a hash of the criminal action against former FBI director James Comey provided a month’s worth of entertainment last week. It’s why a lot of people watch NASCAR – not for the racing but because there may be an awesome wreck at some point.

Last week’s legal festivities culminated in US District Court Judge Cameron McGowen Currie dismissing the Comey and Letitia James indictments this past Monday because crack insurance lawyer Halligan – although eminently qualified to be a United States Attorney – was never properly appointed to her position.

The legal geek in me was somewhat disappointed, because it left some of the meaty, substantive issues – such as did the grand jury ever really see the indictment that was ultimately handed up and is this the queen mother of all vindictive prosecutions – unanswered. But regardless, the litigation has thus far been a master’s course for a defendant seeking access to the records of the grand jury that indicted him.

Previously, a US Magistrate Judge, recognizing that ordering the prosecution to turn over grand jury material was “an extraordinary remedy,” had nonetheless noted that “given the … prospect that government misconduct may have tainted the grand jury proceedings, disclosure of grand jury materials under these unique circumstances is necessary.” The 24-page opinion granted the defense full access to grand jury material, finding evidence that Halligan may have misinformed the grand jurors of the law, violated the defendant’s attorney-client privilege by using materials seized from one of his lawyers at the time of the search, violated the 4th Amendment, and handed up an indictment that was never approved by the grand jury.

The Magistrate Judge found eleven separate, detailed and serious allegations supported release. “The traditional policies underlying grand jury secrecy are only moderately applicable to this case,” the Court said. “Here, the grand jury’s role in this case is over and the statute of limitations has expired so there is no danger that release of grand jury materials could impact future grand jury proceedings. The only person to testify before the grand jury was a single federal agent. There are no other ‘persons who have information with respect to the commission of crimes’ who testified before the grand jury, either voluntarily or pursuant to a subpoena. The government has offered no particularized reason why grand jury materials should be kept from the person the grand jury indicted… On the other hand, as the Court has found, these materials are essential if Mr. Comey is to fully and fairly defend himself in the face of the irregularities that have characterized this investigation from its inception.”

The decision underscores the level of detail required to obtain access to grand jury materials. It should be required reading for defendants who figure that a “pretty please” is all it takes to get access to grand jury materials.

United States v. Comey, Case No 1:25-cr-272, 2025 U.S. Dist. LEXIS 226131 (E.D.Va. November 17, 2025)

~ Thomas L. Root