So, I will confess to holding a grudge. I will never forgive those who stole from me. And, yes, I might have tried my hand at a Calabrian curse, but really, I am a complete amateur when it comes to the darkest arts of revenge and retribution. Reuters reminds us how very central retribution has been to the Trump agenda:
In his second term, Donald Trump has turned a campaign pledge to punish political opponents into a guiding principle of governance. What began as a provocative rallying cry in March 2023 – ‘I am your retribution’ – has hardened into a sweeping campaign of retaliation against perceived enemies, reshaping federal policy, staffing and law enforcement …
It’s a campaign led from the top: Trump’s White House has issued at least 36 orders, decrees and directives, targeting at least 100 individuals and entities with punitive actions, according to the Reuters analysis. Trump openly campaigned on a platform of revenge in his latest run for the presidency, promising to punish enemies of his Make America Great Again movement. ‘For those who have been wronged and betrayed, I am your retribution,’ he said in a March 2023 speech. Weeks later, while campaigning in Texas, he repeated the theme. ‘I am your justice,’ he said.
I guess there is something to be said for the enduring power of obsession. A normal person might have been satisfied with the fact that he successfully fired James Comey without warning. Then, to humiliate him, he locked him out of the FBI building. Then, he sicced the Department of Justice on Comey and they began an investigation.
It seems no punishment will ever be harsh enough for Donald Trump to leave James Comey in peace. In tweets and Truth Social posts over the years, Donald Trump could not help but reveal how much he still hated Comey or how extraordinary of a hold “Russia, Russia, Russia” still had on his psyche. James Comey still represented all that he hated.
Now, in case you have forgotten, Comey appeared before the Senate Judiciary Committee on May 3, 2017, just six days before Donald Trump fired him. And Sen. Chuck Grassley (R – Iowa) and Comey had had this exchange:
Comey had no way of knowing that his answers to these questions would assume ever greater importance over the years and re-emerge as the linchpin in Donald Trump’s attempt to send him to jail eight years later. Remember, from his first official encounter (when he and several others informed Donald Trump about what the intelligence services had learned about Russia’s activities in the 2016 election), James Comey wrote detailed memos describing their interactions.
While the FBI and DOJ had previously tried to maintain a clear boundary between their official responsibilities and the needs of the president, Donald Trump insisted on fudging those distinctions. And it did not take long before the president made clear his desire that Comey and the FBI pledge loyalty to his political agenda.
As he wrote in “A Higher Loyalty,” Comey believed these unclassified memos were his personal records. And should the president lie about what happened during these interactions, or deny his inappropriate requests, they would correct the record. But the Department of Justice’s Office of Inspector General (OIG) decided otherwise:
We conclude that the Memos were official FBI records, rather than Comey’s personal documents … Comey’s drafting of the Memos can only be viewed as the ‘act of creating and recording information by agency personnel in the course of their official duties.’
The DOJ did their best to transform James Comey from a well-respected former prosecutor and FBI director to a criminal:
The next logical step in Donald Trump’s retribution campaign was to put Comey under oath and prosecute a case against him. That opportunity presented itself when the Senate Judiciary Committee had Comey testify on September 30, 2020, on his role in the Russia investigation. As The New York Times reported:
Senate Republicans sought on Wednesday to promote their efforts to rewrite the narrative of the Trump-Russia investigation before Election Day, using a hearing with the former F.B.I. director James B. Comey to cast doubt on the entire inquiry by highlighting problems with a narrower aspect of it … Mr. Comey, who testified by video from his home, rejected the Republicans’ conclusions and pointed to the findings of that review by the Justice Department’s inspector general, Michael E. Horowitz, who detailed the mistakes in the applications for permission to eavesdrop on Mr. [Carter] Page but concluded that there was no evidence they stemmed from political bias. ‘In the main, it was done by the book, it was appropriate and it was essential that it be done,’ Mr. Comey said of the Russia inquiry.
Then, Sen. Ted Cruz (R – Texas) resurrected Comey’s 2017 conversation with Sen. Grassley:
Clearly, Sen. Cruz had decided that James Comey had lied to Sen. Grassley. He never gave Comey the benefit of the doubt or considered that there might be some explanation other than that Comey had lied. By relying on Sen. Cruz’s interrogation, Trump, and his confederates in the Department of Justice, made several critical mistakes. And in 2025, they indicted Comey.
First, Cruz assumed that Sen. Grassley had evidence that Comey had been an anonymous source in 2017 for news articles. Cruz also assumed that Grassley was really referring to Andy McCabe when he asked Comey, “Have you ever authorized someone else at the FBI to be an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?” But it turns out that while Andy McCabe had indeed been the source for a Wall Street Journal (WSJ) article titled “FBI in Internal Feud Over Hillary Clinton Probe,” Comey had nothing to do with that.
And as the Office of Inspector General concluded in its February 2018 “A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe”:
McCabe lacked candor during his conversation with then-Director Comey on or about October 31, 2016 … Comey said that McCabe ‘definitely’ did not tell Comey that he had authorized the disclosure … we concluded that the overwhelming weight of that evidence supported Comey’s version of the conversation. Indeed, none of the circumstantial evidence provided support for McCabe’s account of the discussion; rather, we found that much of the available evidence undercut McCabe’s claim.
[Emphasis added.]
Had Sen. Cruz done his homework, he would have learned that the OIG had already cleared James Comey of participating in Andy McCabe’s disclosures to The Wall Street Journal. And so, Cruz was either misinformed or deliberately trying to impugn Comey’s integrity.
In fact, the one person Comey did eventually ask over the years to share information with the press was his former colleague at the DOJ, his attorney and friend Daniel Richman. “In a Higher Loyalty,” Comey explains how President Trump’s tweet about taping their conversations convinced him to share some of what had happened between them:
I decided I would prompt a media story by revealing the president’s February 14 direction that I drop the Flynn investigation. That might force the Department of Justice to appoint a special prosecutor, who could then go get the tapes that Trump had tweeted about … Dan had been giving me legal advice since my firing. I told him I was going to send him one unclassified memo and I wanted him to share the substance of the memo—but not the memo itself—with a reporter. If I do it myself, I thought, it will create a media frenzy …
[Emphasis added.]
Donald Trump’s self-delusion, combined with the surrender of so many Republicans, has enabled him to damage and destroy many of the pillars of American justice: the rule of law, the presumption of innocence, the right to habeas corpus, the responsibility of government lawyers to rigorously examine evidence before bringing charges, and, of course, the commitment to be honest to the courts.
This shameful behavior is evident in the Department of Justice’s vengeful prosecution of James Comey. I is hard to believe, but Sen. Cruz’s stupid and incompetent questioning of Comey lies at the heart of their case. And it turned out that there were some at the Eastern District who could not prosecute an unworthy case against Comey—especially Erik Siebert, a well-respected attorney who had worked for four different administrations.
The UK Independent wrote: “A top prosecutor has resigned after refusing to press charges against some of President Donald Trump’s political foes, new reports reveal … Shortly beforehand, Trump told reporters he wanted Siebert ‘out’ ….”
Mr. Siebert, a former Washington, D.C., police officer, worked his way up through the ranks at the U.S. attorney’s office over the past 15 years. He has handled a broad range of cases including international drug and firearms trafficking, white-collar crime, child sexual exploitation, public corruption and immigration … Beginning in 2019, he was the deputy criminal supervisor in the Richmond division of the U.S. attorney’s office. He became the interim U.S. attorney of Eastern Virginia in January, and in May the federal judges in the district unanimously chose to keep him in the role … Mr. Siebert informed prosecutors in his office of his resignation through an email hours after the president, speaking to reporters in the Oval Office, said he wanted him removed because two Democratic senators from Virginia had approved of his nomination … Mr. Trump later disputed that Mr. Siebert had resigned, saying in a late-night social media post, ‘He didn’t quit, I fired him!’ …
The Times points to a critical development in the attempted prosecution of Comey:
Last week, prosecutors from Mr. Siebert’s office subpoenaed Daniel C. Richman, a Columbia law professor and close friend and adviser to Mr. Comey, in connection with an investigation into whether the former director had lied about whether he authorized Mr. Richman to leak information to the news media … Documents released by the F.B.I. in August showed that investigators had examined possible disclosures of classified information to The New York Times. Mr. Richman’s statements to prosecutors were not helpful in their efforts to build a case against Mr. Comey, according to two people familiar with the matter.
As we will see in subsequent court decisions, Daniel Richman plays a central and misplaced role in the government’s case against Comey. It is clear in the U.S. response to Comey’s motion to dismiss that they have heavily relied on emails seized from Richman during 2016 and 2017:
The Times’ choice of “not helpful” hardly describes the impact of Daniel Richman’s response. If Richman was unwilling to testify under oath that Comey had authorized him to leak classified material, Comey’s denial to Sen. Grassley and his subsequent willingness to stand by that 2017 testimony makes perfect sense and makes it highly unlikely that a jury would believe Comey was lying.
In a rational world, you would want criminal prosecution to be guided by facts. To summon up the most convincing evidence and make the best case to prove guilt. In fact, as the DOJ’s Justice Manual makes clear, this process governs the decision to either prosecute or decline prosecution:
Having reviewed the evidence, Erik Siebert declined to prosecute James Comey. Six hours after he resigned, Donald Trump made it clear to Pam Bondi that he was far less interested in the Principles of Federal Prosecution than revenge and retribution:
Not surprisingly, in their rush for revenge, Trump and Bondi made some terrible mistakes. Instead of sticking up for Erik Siebert, as Politico reported:
Bondi appointed Mary ‘Maggie’ Cleary — a self-described conservative lawyer from Culpeper, Virginia, who has been active in Republican politics — as acting U.S. attorney …
Cleary has served as an assistant U.S. attorney and once claimed she was ‘framed’ for being at the Capitol on Jan. 6, 2021, leading to a brief internal investigation and placement on administrative leave before she was cleared …
Even with her political pedigree, Cleary’s days were numbered. It seems she had agreed with Siebert. And so, Trump made it clear he wanted Lindsey Halligan:
Lindsey Halligan, one of President Trump’s former defense lawyers … takes the helm of the U.S. Attorney’s Office for the Eastern District of Virginia as interim U.S. attorney after serving as a senior aide to Mr. Trump … Federal law allows Halligan to serve as interim U.S. attorney for only 120 days, unless federal judges on the U.S. district court in the region extend her appointment or she is confirmed by the Senate … Before joining the White House and working for Mr. Trump, Halligan handled insurance claims at a law firm in Florida. She graduated from the University of Miami Law School in 2013 and was admitted to the Florida Bar in 2014. Halligan has never worked in a prosecutor’s office.
Just a few weeks later, Cleary was removed from office, joining Michael Ben’Ary and Maya Song, two other high-level prosecutors in the office. CNN adds some context:
Halligan has moved quickly to assert her authority over the office, with several recent firings and departures, and becoming personally involved in courtroom proceedings … Another source familiar with the dynamic in the office told CNN that Halligan was interested in moving around prosecutors who she believed may oppose her work on highly politicized cases …
Then, on September 25, 2025, Halligan did what Donald Trump wanted most and went before a grand jury to secure two of three charges against James Comey. But what was especially unusual was that no one from her office joined her, and Halligan addressed the grand jury by herself. And, as we will see, Halligan made a major mess of it.
First, The New York Times points to potentially confusing aspects of the charges:
At the center of the Trump administration’s indictment of James B. Comey, the former F.B.I. director, is testimony he delivered before Congress in September 2020. But the details of the accusation against him remain murky because the indictment is extremely sparse. It was filed by a novice prosecutor installed days ago by President Trump to lead the Eastern District of Virginia after her predecessor refused to bring the case.
The Times explains:
[The statement the government claims was false] seemingly attributed to Mr. Comey in the first charge was actually uttered by Senator Ted Cruz, Republican of Texas. That is one of several factors that makes dissecting their exchange complicated and ambiguous — an issue that could be problematic for proving to a jury that Mr. Comey not only made a false statement but also did so intentionally … The 2017 exchange itself falls outside the five-year statute of limitations to charge someone with making a false statement, so Mr. Comey is being charged for saying in 2020 that he stood by having said ‘no’ and that his testimony was ‘the same today.’
[Emphasis added.]
Comey’s legal team responded on two fronts. First, they challenged the indictment on its merits: as both an attack on James Comey’s constitutionally protected free speech and then as a vindictive and selective prosecution prompted by the animus of the president:
They argued:
The indictment in this case arises from multiple glaring constitutional violations and an egregious abuse of power by the federal government. The United States Constitution entitles individuals to speak out against the government and, in turn, forbids the government from retaliating against individuals for their protected speech. And bedrock principles of due process and equal protection have long ensured that government officials may not use courts to punish and imprison their perceived personal and political enemies. But that is exactly what happened here. President Trump ordered the Department of Justice (DOJ) to prosecute Mr. Comey because of personal spite and because Mr. Comey has frequently criticized the President for his conduct in office. When no career prosecutor would carry out those orders, the President publicly forced the interim U.S. Attorney to resign and directed the Attorney General to effectuate ‘justice’ against Mr. Comey. He then installed a White House aide with no prosecutorial experience as interim U.S. Attorney. The President’s new hand-picked interim U.S. Attorney indicted Mr. Comey just days later—and days before the relevant statute of limitations was set to expire.
Defendant James B. Comey, Jr., submits this motion to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(A) because the government’s conduct in this case violates two settled and surpassingly important legal doctrines. First, the government instigated a vindictive prosecution based on Mr. Comey’s protected speech, in violation of the Due Process Clause and First Amendment. Second, the government engaged in selective prosecution, in violation of equal protection principles. Dismissal of federal criminal charges under these doctrines has been rare. That is because for decades the DOJ has maintained the highest standard of ethics, following only the facts and the law to determine whether to bring criminal charges. This case marks a sharp departure from that tradition. Ample objective evidence—much of which comes directly from government officials’ own public statements and admissions—establishes that the government’s animus toward Mr. Comey led directly to this vindictive and selective prosecution. The proper remedy for the government’s constitutional violations is a dismissal with prejudice. That is the only way to cure the government’s flagrant misconduct and to deter similar future prosecutions of perceived political opponents.
[Emphasis added.]
The Comey team offered evidence of Donald Trump’s simmering, seemingly uncontrolled anger towards James Comey: the continuing attacks on his honesty, his integrity, and his competence. They added an attachment documenting many of Trump’s hostile public remarks and social media posts to demonstrate that animus.
As FBI director, they explained:
[Comey supervised] ‘Crossfire Hurricane,’ a counterintelligence investigation into alleged links between President Trump’s 2016 campaign and the Russian government, as well as ‘Midyear Exam,’ a 2016 investigation into then-candidate Hillary Clinton’s alleged mishandling of classified information during her tenure as Secretary of State … On May 9, 2017, President Trump fired Mr. Comey as FBI Director. Thereafter, various prosecutors at the DOJ and the FBI investigated whether Mr. Comey had committed wrongdoing during his tenure as FBI Director, and all investigations concluded with no charges against him. In August 2017, the DOJ and the FBI initiated ‘Arctic Haze,’ an investigation into whether Mr. Comey had illegally disclosed classified information to the news media through Daniel Richman, a Columbia Law School professor and former FBI Special Government Employee … The government ultimately concluded that there was not ‘sufficient evidence to criminally charge any person, including Comey or Richman.’
Additionally, in March 2019, Attorney General William Barr appointed John Durham as Special Counsel to review the FBI’s and DOJ’s handling of investigations into alleged connections between President Trump’s 2016 campaign and the Russian government … As part of the investigation, Special Counsel Durham scrutinized whether the FBI had mishandled the Crossfire Hurricane investigation … Although the final ‘Durham Report’ offered critiques of the FBI’s investigative standards, it did not find that Mr. Comey or any other senior FBI personnel violated any federal criminal statutes …
In April 2018, news accounts highlighted the upcoming publication of Mr. Comey’s book, A Higher Loyalty. On April 15, ABC News released portions of an interview with Mr. Comey in which he compared President Trump to a New York mafia boss, calling him ‘untethered to truth,’ ‘unethical,’ and ‘morally unfit to be President.’ … Mr. Comey also described President Trump as ‘[a] person who sees moral equivalence in Charlottesville, who talks about and treats women like they’re pieces of meat, and who lies constantly about matters big and small.’ … That same month, President Trump posted numerous tweets displaying his personal animus toward Mr. Comey. He called Mr. Comey ‘a proven LEAKER & LIAR’ and ‘a weak and untruthful slime ball,’ and stated that Mr. Comey ‘should be prosecuted.’ … President Trump accused Mr. Comey of ‘illegally leak[ing] CLASSIFIED INFORMATION’ and stated that Mr. Comey was ‘either very sick or very dumb.’ …
Around this time, President Trump began exploring the possibility of using his official powers to retaliate against Mr. Comey. General John F. Kelly, President Trump’s Chief of Staff from July 2017 through December 2018, has publicly stated that President Trump expressed a desire to deploy the FBI, DOJ, and Internal Revenue Service (IRS) against his critics, including Mr. Comey …
Secondly, Comey asserted that Lindsey Halligan was unlawfully appointed and therefore lacked the legal status to bring the case and secure the indictment.
In response, Judge Nachmanoff appointed U.S. District Senior Judge Cameron McGowan Currie of the District of South Carolina to hear the questions of Halligan’s standing. And this was in addition to the appointment of Judge Fitzpatrick on October 29, 2025, “to preside over all proceedings related to the potential review of privileged materials in this case.”
Indeed, the consequences of Halligan’s solo appearance before the grand jury quickly become apparent. CBS News put it this way:
Judge who reviewed Comey indictment confused by prosecutor’s handling of case … U.S. Magistrate Judge Lindsey Vaala expressed confusion and surprise at some points during the seven-minute court session when a federal grand jury impaneled in Alexandria, Virginia, returned the indictment of former FBI Director James Comey Thursday night …
Judge Vaala asked the newly named interim U.S. Attorney Lindsey Halligan — a former Trump personal lawyer — why there were two versions of the indictment. A majority of the grand jury that reviewed the Comey matter voted not to charge him with one of the three counts presented by prosecutors, according to a form that was signed by the grand jury’s foreperson and filed in court. He was indicted on two other counts — making false statements to Congress and obstructing a congressional proceeding — after 14 of 23 jurors voted in favor of them, the foreperson told the judge.
But two versions of the indictment were published on the case docket: one with the dropped third count, and one without. The transcript reveals why this occurred. ‘So this has never happened before. I’ve been handed two documents that are in the Mr. Comey case that are inconsistent with one another,’ Vaala said to Halligan. ‘There seems to be a discrepancy. They’re both signed by the (grand jury) foreperson.’ And she noted that one document did not clearly indicate what the grand jury had decided. ‘The one that says it’s a failure to concur in an indictment, it doesn’t say with respect to one count,’ Vaala said. ‘It looks like they failed to concur across all three counts, so I’m a little confused as to why I was handed two things with the same case number that are inconsistent.’
[Emphasis added.]
Here is what Count Three alleged:
False statements within the jurisdiction of the legislative branch of the United States Government (18 U.S.C. § 1001(a)(2)) …
1. On or about September 30,2020, in the Eastern District of Virginia, the defendant, JAMES B. COMEY JR., did willfully and knowingly make a materially false, fictitious, and fraudulent statement in a matter within the jurisdiction of the legislative branch of the Government of the United States, by falsely stating to a U.S. Senator during a Senate Judiciary Committee hearing that he, JAMES B. COMEY JR., did not remember ‘being taught’ of PERSON I’s ‘approval of a plan concerning’ PERSON 2 and the 2016 U.S. Presidential election.
2. That statement and representation was false, because, as JAMES B. COMEY JR. then and there knew, he had in fact been provided information regarding PERSON 1’s approval of a plan concerning PERSON 2 and the 2016 U.S. Presidential election.
3. All in violation of 18 U.S.C. § 1001(a)(2).
It is not surprising a jury had trouble indicting on this charge. It scarcely makes sense. But what Halligan did next was shocking. Faced with the jury’s rejection of Count Three, it appears that she chose not to prepare a new indictment for the two other remaining charges and not to bring that new indictment for the grand jury’s consideration. Instead, she prevailed upon the grand jury foreperson to sign a new hastily prepared document containing only the two counts they had voted for, which Halligan then presented to Magistrate Judge Lindsey Vaala.
Halligan’s misstep prompted the call from all three judges involved in the case and the Comey team to see for themselves the transcript of the grand jury proceedings. And that is when both Halligan and Attorney General Pam Bondi made matters much worse. In response to her demand to see the transcript, Judge Currie quickly realized that Halligan had chosen to provide her with an incomplete version:
Motivated by the arrogant belief that all power resides in the executive branch, Halligan and Bondi continued to offer confusing, sometimes contradictory accounts. Finally, during a hearing before Judge Nachmanoff on November 19, 2025, Halligan admitted that the full grand jury had never seen the revised indictment. One by one, in a cascade of negative opinions, Halligan’s case against Comey was collapsing.
On November 17, 2025, Judge Fitzpatrick, having carefully examined the complete grand jury transcript issued his memorandum. Fitzpatrick highlighted the misuse of materials seized from Daniel Richman pursuant to warrants obtained during the FBI’s 2019 and 2020 investigation of “Arctic Haze” to determine whether there were violations of 18 U.S.C. § 641 (Theft and Conversion of Stolen Government Property) and 18 U.S.C. § 793 (Unlawful Gathering or Transmission of National Defense Information). These, of course, are very different crimes than those alleged in 2025 to have been committed by Comey.
And Fitzpatrick notes that the government never asked Mr. Comey or Richman to weigh in on deciding which material ought to be considered privileged. Fitzpatrick explains
when the government obtained the first Richman Warrant in 2019, it was clearly foreseeable that Mr. Richman’s devices contained potentially privileged communications with numerous third parties, including Mr. Comey. Nevertheless, in 2019 and 2020, the government made a conscious decision to exclude Mr. Comey from the filter process, even though Mr. Comey, as the client, is the privilege holder, not Mr. Richman …
He says the government had been instructed to “seal any information that does not fall within the scope of [the warrant] and … not [to] further review the information absent an order of the Court.”
Fitzpatrick notes:
This cavalier attitude towards 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. The Arctic Haze investigation was closed in September 2021, with no charges filed. The Richman materials sat dormant with the FBI until the summer of 2025, when the Bureau chose to rummage through them again …
Fitzpatrick makes the point that the government chose not to seek a new warrant for its 2025 search of these materials because it was under the time pressure of the statute of limitations and:
Having decided to forge ahead under these highly unusual circumstances, the FBI agent conducting the September 12, 2025 search of the disc containing information from Mr. Richman’s iPhone and iPad was specifically instructed to seize ‘conversations between [Mr.] Richman and [Mr.] Comey.’ … There appeared to be no precautions in place to avoid the collection of privileged communications …
It turns out that “Agent-3,” who conducted the search, was the only one beside Halligan to address the grand jury, and as Fitzpatrick points out:
The government’s decision to allow an agent who was exposed to potentially privileged information to testify before a grand jury is highly irregular and a radical departure from past DOJ practice … While it is true that the undersigned did not immediately recognize any overtly privileged communications, it is equally true that the materials seized from the Richman Warrants were the cornerstone of the government’s grand jury presentation. The government substantially relied on statements involving Mr. Comey and Mr. Richman in support of its proposed indictment. Agent-3 referred to these statements in response to multiple questions from the prosecutor and from grand jurors and did so shortly after being given a limited overview of privileged communications between the same parties …
Most significantly, Judge Fitzpatrick identified statements by Lindsey Halligan “that could compromise the integrity of the grand jury process”:
Both statements by the prosecutor are in response to questions by grand jurors and are directly related to communications involving Mr. Comey. First, after having advised the grand jurors that the prosecutor was their legal advisor … the prosecutor stated: BLACKED OUT … The prosecutor’s statement BLACKED OUT is a fundamental and highly prejudicial misstatement of the law that suggests to the grand jury that Mr. Comey does not have a Fifth Amendment right not to testify at trial. The prosecutor’s statement ignores the foundational rule of law that if Mr. Comey exercised his right not to testify the jury could draw no negative inference from that decision … The prosecutor’s statement that BLACKED OUT may have reasonably set an expectation in the minds of the grand jurors that rather than the government bear the burden to prove Mr. Comey’s guilt beyond a reasonable doubt at trial, the burden shifts to Mr. Comey to explain away the government’s evidence …
In addition, the statement by the prosecutor was made in response to challenging questions from grand jurors, the context of which suggests the grand jurors may have reasonably understood the prosecutor to mean that if she could not satisfactorily answer their questions, then Mr. Comey would BLACKED OUT answer these questions at trial.
Then, according to Fitzpatrick:
[Halligan] clearly suggested to the grand jury that they did not have to rely only on the record before them to determine probable cause but could be assured the government had more evidence–perhaps better evidence–that would be presented at trial.
Finally, Fitzpatrick admitts:
… the Court is in uncharted legal territory in that the indictment returned in open court was not the same charging document presented to and deliberated upon by the grand jury. Either way, this unusual series of events, still not fully explained by the prosecutor’s declaration, calls into question the presumption of regularity generally associated with grand jury proceedings, and provides another genuine issue the defense may raise to challenge the manner in which the government obtained the indictment.
He notes:
Accordingly, when prosecutorial misconduct before the grand jury prejudices a defendant and threatens the defendant’s right to fundamental fairness in the criminal process, a district court may exercise its supervisory authority to dismiss the indictment.
Fitzpatrick highlights 11 serious errors in Halligan’s indictment and presentation to the grand jury, amongst them:
First, the facts establish a reasonable basis for the defense to challenge whether the Richman Warrants were executed in a manner consistent with the Fourth Amendment and the orders of the issuing court.
Second, the facts establish a reasonable basis for the defense to challenge whether the government exceeded the scope of the Richman Warrants in 2019 and 2020 by seizing and preserving information that was beyond the scope of the warrants …
Third, the facts establish a reasonable basis for the defense to challenge whether the government had the lawful authority to search the Richman materials anew in 2025.
Fourth, the facts establish a reasonable basis for the defense to challenge whether the government’s 2025 seizure of the Richman materials included information beyond the scope of the original warrants.
Fifth, the nature and circumstances surrounding the government’s potential violations of the Fourth Amendment and court orders establish a reasonable basis to question whether the government’s conduct was willful or in reckless disregard of the law.
Sixth, the facts provide a reasonable basis for the defense to show that they were prejudiced by the government’s use of the Richman materials in the grand jury, particularly if the government’s conduct was willful or reckless, given the centrality of these materials to the government’s presentation …
Eleventh, the grand jury transcript and recording likely do not reflect the full proceedings because, although it is clear that a second indictment was prepared and presented to the grand jury (ECF 3), the transcript and audio recording of the proceedings do not reflect any further communications after the grand jury began deliberating on the first indictment.
Collectively, the facts set forth herein and the particularized findings of the Court establish that ‘ground[s] may exist to dismiss the indictment because of a matter that occurred before the grand jury[.]’ Rule 6(e)(3)(E)(ii). The Court need not now determine whether any facts herein have been proven, or whether there is merit to any motion yet to be filed. That task may lie ahead. Rather, the Court is finding that the government’s actions in this case–whether purposeful, reckless, or negligent–raise genuine issues of misconduct, are inextricably linked to the government’s grand jury presentation, and deserve to be fully explored by the defense …
Indeed, that task may lie ahead. We have seen Judge Fitzpatrick lay waste to much of the government’s case against James Comey. Next time, Daniel Richman weighs in with his own legal action and we discover what Judge Cameron McGowan Currie has to say about Lindsey Halligan’s status, as well as what Judge Nachmanoff has to say about Comey’s motion to dismiss.
