Judge scolds Comey prosecutors for 'indict first and investigate second' approach
A federal judge on Wednesday scolded the prosecutors pursuing charges against former FBI director James B. Comey for what he described as their “indict first and investigate second” approach to the case, saying it has placed an unfair burden on Comey’s defense.
U.S. Magistrate Judge William E. Fitzpatrick described the Justice Department’s handling of the case as “highly unusual” and ordered its attorneys to hand over a raft of potential evidence by the end of the day Thursday. That material includes full transcripts of U.S. Attorney Lindsey Halligan’s September presentation to the grand jury that indicted Comey on counts of making false statements and obstructing a congressional proceeding.
“This is not a typical case,” Fitzpatrick said. “Right now, we’re in a bit of a feeling of indict first and investigate second.”
The judge delivered that rebuke near the end of a largely procedural hearing as the Justice Department prepares its case for a trial expected early next year.
Comey’s attorneys have denied the allegations against him and moved to have the case thrown out, arguing it was brought in response to President Donald Trump’s improper demands that the Justice Department target his longtime foe.
Comey is accused of lying during a September 2020 Senate Judiciary hearing in which he was asked whether he’d ever authorized anyone at the FBI to serve as an anonymous source to the news media. Prosecutors contend that while Comey maintained he had not, he had actually given an old friend and attorney the go-ahead to serve as a conduit between him and reporters.
That friend—Columbia law professor Daniel Richman, who also briefly worked for the FBI—was investigated during Trump’s first administration as part of an inquiry into whether Comey had illegally shared classified information. The Justice Department closed that case without charges.
At issue Wednesday was whether the current prosecution team could review and potentially use emails, records and other electronic communications seized from Richman during that probe as part of the current case. Those records include exchanges between Richman and a New York Times reporter in which they discussed sharing information at Comey’s behest.
Assistant U.S. Attorney N. Tyler Lemons told the court that agents had secured four search warrants for Richman’s devices between 2019 and 2020, including ones allowing investigators to review his computer hard drive, Columbia email account, and iCloud devices.
But because Richman had briefly represented Comey as his attorney after Trump fired him as FBI director in 2017, some of that seized material might be protected by attorney-client privilege, barring its use by prosecutors.
Lemons said Richman and his lawyers had the opportunity to review the communications when they were taken by agents five years ago and mark any potentially privileged information that should be kept from investigators.
Comey and his team have not. Attorneys for the former FBI director maintained Wednesday that it was fundamentally unfair to let prosecutors review Richman’s seized communications without input from Comey’s defense.
“Mr. Comey was not involved—full stop,” attorney Rebekah Donaleski said, referring to that earlier review process. “Mr. Richman had his own counsel whose job was to protect Mr. Richman’s interests.”
At several points during Wednesday’s proceedings, Fitzpatrick expressed annoyance at the Justice Department’s inability to describe how it has handled the Richman materialboth during the earlier investigation and in preparing its current case.
For example, the 2019 and 2020 search warrants only authorized agents to review Richman’s devices for potential evidence of specific crimes. Lemons could not fully detail Wednesday what steps investigators had taken in 2019 and 2020 to ensure they were reviewing material that was relevant and discarding information that was not.
In the current investigation, Lemons said, “we’re not going to touch this evidence until the court approves it.”
Comey’s lawyers remained skeptical, noting Wednesday that some material that appears to have been obtained through those warrants has already appeared in government court filings.
They’ve raised questions over whether prosecutors should be allowed to use any of that information, given it was obtained through search warrants that were approved in a different investigation involving a different set of alleged crimes than those Comey faces now.
In addition to the grand jury transcripts, Fitzpatrick on Wednesday ordered that all of the seized Richman material be shared with Comey’s defense. He warned that if prosecutors continued to quote from it in their court filings before that review was complete, they did so “at their own risk”—suggesting that if their use of the material is later deemed improper it could threaten their entire case against Comey.
The case involves another significant hurdle, however, before any ruling on that question is likely to come. Comey’s lawyers contend the case should be dismissed on grounds that Halligan, the prosecutor overseeing it, was appointed to her role in violation of laws governing U.S. attorney appointments.
Trump installed Halligan, one of his former personal lawyers, as the interim U.S. attorney in the Eastern District of Virginia after her predecessor, Erik S. Siebert, was pushed out of the job in part because of his conclusion there was insufficient evidence to charge Comey.
An out-of-state judge has scheduled a hearing next week on the arguments regarding Halligan’s legitimacy as U.S. attorney and whether questions surrounding her appointment should impact the Comey case.
See also:
James Comey, the former prosecutor, high-ranking official and author, is now a federal defendant
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