Federal judge blasts potential 'government misconduct' in Comey case
A federal judge on Monday offered a blistering assessment of the Justice Department’s case against former FBI Director James B. Comey, detailing what he described as a “disturbing pattern of profound investigative missteps” and possible misconduct that could imperil the prosecution.
U.S. Magistrate Judge William Fitzpatrick criticized authorities for their “cavalier” attitude toward the rights of Comey and others. Lindsey Halligan, the Trump-appointed U.S. attorney overseeing the case, appeared to have made “fundamental misstatements of the law” to the grand jury that indicted Comey on charges of lying to Congress, he wrote.
Those irregularities “potentially undermine the integrity of the grand jury proceeding,” Fitzpatrick wrote. He ordered the Justice Department to hand over full transcripts of those proceedings to the defense, saying they could be used to inform Comey’s efforts to seek dismissal of the case.
“The court recognizes this is an extraordinary remedy,” Fitzpatrick wrote, noting that grand jury material is typically kept from defendants and their lawyers until trial.
“But given the … prospect that government misconduct may have tainted the grand jury proceedings,” the judge said, “disclosure of grand jury materials under these unique circumstances is necessary.”
The Justice Department quickly appealed Fitzpatrick’s order to the federal district judge overseeing the case. Department officials declined to comment on Fitzpatrick’s broader characterization of the Comey investigation.
Fitzpatrick’s 24-page ruling offered the most complete accounting to date of the rushed push to charge Comey with a crime, following President Donald Trump’s demand in late September that the Justice Department move swiftly to prosecute his longtime foe. Halligan obtained the indictment against Comey just days before the statute of limitations would have expired on his case.
After reviewing the grand jury transcripts, the judge said he came away with deep concerns about the process leading to that indictment.
“Here, the procedural and substantive irregularities that occurred before the grand jury, and the manner in which evidence presented to the grand jury was collected and used, may rise to the level of government misconduct resulting in prejudice to Mr. Comey,” Fitzpatrick wrote.
Comey has sought dismissal of the case against him on several grounds, including the potential grand jury irregularities Fitzpatrick raised on Monday, an argument that Halligan’s appointment was illegal and that the prosecution is an improper extension of Trump’s personal animosity toward him.
Among the issues Fitzpatrick flagged Monday were statements that Halligan made to grand jurors as she presented the case against Comey for possible indictment. A former White House aide whom Trump appointed in September as interim U.S. attorney for the Eastern District of Virginia, Halligan had no previous experience as a prosecutor. She presented the Comey case to the grand jury alone after several career prosecutors in her office concluded there was insufficient evidence to move forward with a case.
In Fitzpatrick’s retelling Monday, Halligan appeared to misrepresent the law as she sought to explain away gaps in the evidence amid tough questioning from grand jurors.
At one point, Fitzpatrick said, she appeared to suggest that Comey would have to answer those questions himself and explain his innocence at trial—a mischaracterization of the government’s burden to prove its case beyond a reasonable doubt.
At another point, Halligan appeared to improperly suggest to the panel that they did not have to rely only on the evidence before them but could indict on the assumption that the government would have what Fitzpatrick described as “more evidence—perhaps better evidence—that would be presented at trial.”
Fitzpatrick also expressed particular concern that the single FBI agent who testified to the grand jury previously acknowledged he had inadvertently reviewed sensitive material that, in the judge’s estimation, should have prevented the agent’s involvement in the case going forward.
Allowing that agent to testify was “highly irregular and a radical departure from past DOJ practice,” the magistrate judge wrote.
The records at issue included communications and other documents seized during a previous investigation involving Comey’s friend, attorney and confidant Daniel Richman, a law professor at Columbia University.
Richman served briefly as an attorney for Comey, following Trump’s decision to fire him as FBI director in 2017. Prosecutors contend that Comey authorized Richman to serve as an anonymous source to the news media and then lied about that to Congress during a 2020 hearing.
The FBI obtained search warrants in 2019 and 2020 to examine Richman’s personal and professional devices as part of an investigation into whether he had been involved in disseminating classified information. That probe was closed without charges in 2021.
But as prosecutors began building their current case against Comey this summer, investigators relied on material previously seized from Richman as a “cornerstone” of their probe, Fitzpatrick said. He noted that decision raised potential concerns on a number of fronts.
Typically, prosecutors must obtain new search warrants to review material seized as part of prior investigations—something the judge said that Halligan and her team did not do.
“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.
Additionally, because Richman had served as an attorney for Comey during at least part of the period under review, some of the seized communications between them could be subject to attorney-client privilege and should have been kept from the team building the Comey case, he noted.
The FBI agent who testified before the Comey grand jury had reported to superiors that he mistakenly had come across some potentially protected communications between Comey and Richman as part of his investigation.
But rather than remove himself from the investigative team until the issue was resolved, the agent “proceeded into the grand jury undeterred and testified in support of the pending indictment,” Fitzpatrick wrote.
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