The indictment against James Comey is not serious. It is the legal equivalent of the dog ate my homework excuse – sloppy, without substance, and laughable. I’ll detail the glaring irregularities in a moment, but it is worth pointing out that almost no one is defending this indictment on its merits. Sure, there are those who are happy that Comey is getting his “comeuppance,” as if pissing off people at the FBI is reason for a criminal indictment. And there are also those who say that Comey helped start “the revenge cycle” and was an aggressive prosecutor and FBI director—neither of which are relevant to meritless criminal charges. But I do take a tiny bit of comfort that this indictment is being panned as legally unsupported, and any prosecutors involved should take note.

The Wall Street Journal editorial (that uses the false equivalence of “the Biden crowd” for Comey) states that the indictment looks weak and could “end up in legal vindication for Mr. Comey.” Fox News contributor Kimberly Strassel  said it likely “isn’t going to stick” and is “problematic.” Andrew McCarthy, also a Fox News contributor, said, “I don’t think there’s a case….It seems to be premised on something that is not true.” And “this judge should throw the case out.” Right-wing podcast host Megyn Kelly said the Comey indictment is so lean it’s like it was “shot up with Ozempic.” The Daily Wire’s Ben Shapiro said: “It appears … that this isn’t a particularly well-predicated indictment, that the indictment itself is quite weak, and that it’s unlikely to survive in court.” Why should we care what conservative media are saying about this indictment? Because it is so flagrantly ridiculous that even those who would love to tout Comey’s criminality and DOJ’s success cannot defend this.

The indictment’s obvious procedural and substantive irregularities make this conclusion unavoidable. First, it has zero specificity. That may not sound like a big deal, but it is literally the 101 of indictment drafting because the person charged must, under the federal rules and the Constitution, receive adequate notice of the specific charge against them so they can defend against it. That is simply not possible from this indictment, which does not even quote the allegedly false testimony or describe the allegedly obstructive conduct. That omission is either because the drafter of the indictment did not know or did not care which statements to quote—both are problematic for the case and the prosecutors involved professionally.

Second, the Magistrate Judge who reviewed the indictment once it was voted on by the grand jury noted that there were two signed versions of the indictment that were inconsistent with each other. Lindsay Halligan, the real-estate lawyer turned United States Attorney overnight, claimed to be surprised, not knowing why there were two versions—which is not normal to say the least (nor is the fact that she was supposedly not aware of her signature on two indictments).

Third, a key element of any false statement charge like this is materiality—why was the alleged false testimony relevant to proceeding in which it was made? The indictment, parroting the language of the statute, says the statement was materially false, but doesn’t say how. Typically, an indictment on this charge would set forth what Congress was investigating and why the false statement was material to the investigation. Why not here? And why does the indictment jump from Person 1 to Person 3. Was Person 2 in the count that got no true-billed and/or is this just more evidence that this thing was thrown together at the last minute in slapdash fashion?

There is a reason that almost every time my colleagues and I at the Southern District of New York discussed potential perjury charges we decided against them. They are notoriously difficult to prove, for good reason. They require a specific statement that the government can show is false—not just ambiguous. They must prove the defendant made the false statement with knowledge of its falsity, rather than as a result of confusion, mistake, or faulty memory. If the defendant believed his statement was true when he made it (i.e., didn’t understand or misunderstood the question) even if it was false, then the government fails to prove perjury. People shouldn’t be criminally prosecuted because the questioner or the person answering were unclear or unfocused.

All of the irregularities, errors, and problems with the indictment from the Eastern District of Virginia make clear why the now ousted experienced U.S. Attorney Erik Siebert, and his deputies and career prosecutors, strongly recommended against bringing the indictment; and why no line prosecutor apparently would go into the grand jury themselves. To ignore all of this and rush in to beat the statute of limitations with something so flimsy just because Donald Trump demanded it is not only morally repugnant, it is a violation of a prosecutor’s oath and duty to the Constitution and the ethics rules under which prosecutors operate. Trump finally found lawyers like Halligan—and anyone else at DOJ who assisted or approved this—who are willing to ignore all of these red flags and their professional obligations simply because Trump told them to.

I have faith in the grand jury system. Whenever I addressed the grand jury as district attorney to thank them for their service, I would criticize the saying “a grand jury could indict a ham sandwich.” The grand jury, I explained, acts as a check on prosecutorial conduct before we even walk in the door to the grand jury room. We knew we had to bring cases to regular people, and we weren’t going to ask them to indict something that we shouldn’t have been trying to charge. Could we get an indictment? Probably—given the low threshold of proof and the one-sided government only presentation in the federal system with hearsay evidence. But just because we could get an indictment doesn’t mean we should. And, to be clear, maybe a grand jury will indict a ham sandwich, but this one just barely indicted James Comey—only 14 out 23 grand jurors voted to indict on two of the three counts (12 were required). One count was rejected altogether. That almost never happens in federal practice and is a sure sign of things to come.