(CNN) — The hearing Wednesday morning in the case against former FBI Director James Comey ended with a revelation by prosecutors and a conundrum: if a full grand jury never reviewed the final set of charges handed up against Comey, are they void?
The question arose after a shocking back and forth where prosecutors conceded that instead of presenting a new indictment to the grand jury after it declined to approve one of three counts, interim U.S. Attorney Lindsey Halligan simply brought an altered version, omitting the rejected count, to the magistrate’s courtroom for the grand jury’s foreperson to sign.
Her admission sent shockwaves through the courtroom on Wednesday, where attorneys were gathered to argue a separate legal issue of whether Comey was charged only because of President Donald Trump’s animus toward him.
What will happen to the criminal case was not immediately clear. Judge Michael Nachmanoff, despite appearing exasperated and taking several seconds of silence to take in what the prosecutors admitted, did not give away whether he viewed the issue as a procedural or fatal error.
Nachmanoff did not make any rulings from the bench, saying that the issues before him were too “weighty” to immediately decide.
But the judge did want the Justice Department to address Wednesday their legal interpretation of what happened with the grand jury, and the revelation is likely to play into another ongoing fight in the case where defense attorneys have asserted that federal investigators and top prosecutor Halligan mishandled the case.
The former FBI director has pleaded not guilty to lying during congressional testimony.
The stunning admission
Nachmanoff called on Halligan — Trump’s handpicked U.S. attorney for the Eastern District of Virginia who secured the indictment against Comey by herself — to explain exactly what grand jurors did, or did not, see.
Halligan appeared frustrated as she confirmed that only the foreperson and one other juror – not the entire grand jury – saw the final indictment. In the brief exchange, she tried to answer the judge before he finished asking his question and concluded the exchange with a terse “OK.”
The back and forth lasted about one minute.
Nachmanoff also trained his attention on a different prosecutor on the case, Tyler Lemons, and asked him to explicitly confirm that the final document was never presented to the grand jury.
“I wasn’t there, but that is my understanding,” Lemons said.
After the hearing concluded, people connected with the prosecutors’ office told CNN that they weren’t sure how problematic Halligan’s admission will be for the case. Some may consider it a clerical error that could be fixed, while others see a possibility it could be the fatal flaw in the case, as Comey’s team initially argued on Wednesday.
Prosecutors have six months to “cure” an indictment that was dismissed over legal issues, according to the Justice Department manual, even if the statute of limitations has expired – as is the case for Comey’s charges.
Comey’s attorney Michael Dreeben said that, given the testimony of the prosecutor, “no indictment was returned.”
And even if it is a legal problem, a grand jury document flub may pale in comparison to other issues that have arisen in the case and are still playing out in court, including regarding what Halligan told the grand jurors about Comey’s rights, the evidence and the law.
Grand jury transcripts
The issue over the indictment could also aid in defense attorneys’ efforts to gain access to the grand jury transcripts, an issue that is currently before a magistrate judge in the same courthouse.
That judge initially allowed Comey’s team to have access to the grand jury material, finding in his own review that “the record points to a disturbing pattern of profound investigative missteps.”
Prosecutors quickly asked the magistrate judge to pause the order so that they could file an appeal, which the magistrate judge allowed.
‘Ms. Halligan was not a puppet’
The hearing focused primarily on defense attorneys’ efforts to have the case dismissed because, they argue, it was brought at the direction of Trump and born from his animosity toward Comey.
“The president of the United States has caused the executive branch to prosecute a perceived enemy,” Dreeben began his arguments.
Dreeben, citing a social media post from Trump addressed to the attorney general and calling for the prosecution of Comey and other political enemies, argued that the president has gone after the former director to “punish Mr. Comey for speaking out against him.”
Lemons pushed back, arguing that Comey was making “inferential leaps” in arguing that the case is selective and vindictive.
The prosecutor said that there is “no proof” that Halligan took Trump’s social media post “as a charge.”
“Ms. Halligan was not a puppet,” he added.
Still, the judge questioned “what independent examination could she have made” in the few days between her appointment and the charges being brought against Comey.
DOJ refuses to say if a memo declining to prosecute Comey exists
Nachmanoff also pressed Lemons on whether previous prosecutors who worked on the case before Halligan’s appointment had submitted a memo recommending that Comey not be prosecuted.
Lemons told the judge that someone in Deputy Attorney General Todd Blanche’s office told him he couldn’t disclose “privileged” information without their permission, which included the existence of any memo.
“At this point, my position would be, whether there was a declination memo, is privileged,” Lemons said, adding that “I don’t know in the world of documents there is a declination memo.”
Nachmanoff challenged the assertion, pushing Lemons to eventually say that “someone in the Deputy Attorney General’s office” had instructed him not to say anything.
Asked why, Lemons demurred, conceding briefly that he has “reviewed” draft memorandums – both declination and prosecution memos – and other internal communications, but declined to give additional details.
“I hope you understand that I am trying to answer your questions,” Lemons said.
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