Staying Up Too Late

Some of Comey’s argument after the disastrous day DOJ had earlier this week.

This is the issue the “great legal minds” of Twitter simply cannot grasp. To cut to the chase, the Comey grand jury wasn’t presented with the revised indictment and a chance to vote on it.

DOJ wants to bootstrap the revised indictment under the original, where the grand jury apparently no billed only first count. But DOJ misunderstood how the grand jury voted, or misunderstood how to respond to this situation, and simply presented the revised indictment to the foreperson. The proper rule is:

We conclude then that Rule 6 requires the grand jury as a body to pass on the actual terms of an indictment. We are impelled to this conclusion largely by the constitutional principles of Bain, Stirone and Russell, which emphasize the right of the accused to be tried on an indictment which has in each material particular been approved by a grand jury.

That is not the case here, simply because the grand jury did not consider the revised indictment. They weren’t given directions by the DOJ on the state of the law and the standards to be applied under the revised indictment.

Which, I know, is too subtle for the Twitter legal brain trust (examples of which I refuse to post/link to, but uniformly they think DOJ wins because…DOJ says the errors don’t exist/are de minimus) But jurisdictional errors are always fundamental and never de minimus. They are rare, but they go to the invocation of the court’s authority. Get that wrong, you don’t get a court hearing (of any kind, except dismissal ) in civil or criminal law.*

Non-lawyers don’t understand this, and always think it’s a matter of facts alone. But facts always impact the application of the law. And where the facts show the indictment was not secured according to the law, the law says the indictment is void ab initio, and fails to invoke the court’s authority.

DOJ is now trying to correct its errors by rewriting and reinterpretatiing the testimony disaster they suffered in court, as if it was deposition testimony (outside court) which the judge wasn’t present to hear. Yeah; imagine how well that’s gonna work. Twitter brains weren’t there, either, so they are ignorant of what happened there. They think all they know is, is all there is to know.

Which is why I’m just trying to straighten out, for my own satisfaction, what is going on in court now. Gilmartin thinks he can try this case on social media, which speaks again to the utter incompetence of the Trump Justice Department.

If this case is not soon dismissed, I will be very surprised.

*Jurisdictional errors are rare because most lawyers are competent enough not to make them.