Trump's Follies

Federal judge blasts potential ‘government misconduct’ in Comey case

A U.S. magistrate judge ordered the Justice Department to release all grand jury material to the former FBI director, saying government misconduct could lead to the dismissal of charges against him.

A federal judge excoriated the Justice Department on Monday for its investigation and prosecution of former FBI director James B. Comey, citing a “disturbing pattern of profound investigative missteps” and “government misconduct” that could threaten the viability of the case.

U.S. Magistrate Judge William Fitzpatrick ordered prosecutors to swiftly turn over to a judge the full transcripts and audio of the grand jury proceedings that led to Comey’s indictment in September on charges that he lied to Congress.

Fitzpatrick’s 24-page ruling offered a scathing assessment of the criminal case against Comey, which he described as a rushed investigative process that led to the charges, and a “cavalier” attitude prosecutors and agents appeared to have maintained toward Comey’s constitutional rights.

The Justice Department could appeal Fitzpatrick’s order that prosecutors turn over the grand jury material to the district judge overseeing the case. A spokesperson for the department declined to comment Monday.

In his ruling, Fitzpatrick acknowledged the unusual nature of his order, which could lead to Comey having access to grand jury material, which is typically held secret. “But 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 judge said.

Fitzpatrick reached that conclusion after reviewing the records of the September grand jury proceedings overseen by Lindsey Halligan, the interim U.S. attorney for the Eastern District of Virginia, whom President Donald Trump installed in the post after demanding prosecutions of Comey and other foes.

Fitzpatrick cited a litany of possible procedural and legal missteps that could provide Comey with the basis to have the indictment thrown out.

Among them, the judge said, Halligan — a former personal attorney of Trump’s who had no previous prosecutorial experience — appeared to have misstated key aspects of law when instructing the grand jury that indicted Comey.

The grand jurors asked Halligan tough questions about the case, Fitzpatrick wrote, and Halligan appeared to suggest that Comey would have to answer those questions himself and explain his innocence at trial — an improper characterization of the government’s burden to prove its case beyond a reasonable doubt.

Fitzpatrick also questioned the prosecution team’s use of emails and communications seized during a previous investigation of Comey’s friend, attorney and confidant Daniel Richman, a law professor at Columbia University.

Prosecutors contend that Comey authorized Richman to serve as an anonymous source to a New York Times reporter to explain his thinking in closing the 2016 investigation into then-Democratic presidential candidate Hillary Clinton and her use of a personal email server. They allege Comey later lied about that to Congress during a 2020 hearing.

The Justice Department obtained search warrants for several of Richman’s personal devices during that previous investigation in 2019 and 2020, which did not result in charges. Halligan’s team has sought to use that material in its current case.

But Comey’s attorneys have raised several objections to the use of that material, noting that some of it may be subject to attorney-client privilege, because Richman has served as a personal attorney to Comey. They have also questioned the government’s use of the material from that previous investigation in obtaining the indictment against Comey without first receiving court authorization to do so.

Drawing on his review of the Comey grand jury transcripts, Fitzpatrick said Monday that the materials seized from Richman appear to have been the “cornerstone” of the prosecutor’s presentation to the grand jurors who indicted Comey. If a judge were to later determine they were improperly used, that could further threaten the indictment.

“This cavalier attitude toward a basic tenet of the Fourth Amendment and multiple court orders left the government unchecked to rummage through all of the information seized from Mr. Richman, and apparently, in the government’s eyes, to do so again anytime they chose,” he wrote.