Department of Justice’s case against former FBI Director James Comey is under scrutiny.
As reported on
Tuesday’s AM Update, Federal Magistrate Judge William Fitzpatrick ordered the government to turn over grand jury transcripts and materials to Comey’s legal team in a sharp ruling issued Monday.
Comey is facing obstruction of Congress and false statement charges stemming from his 2020 testimony before the Senate Judiciary Committee during which he answered questions about whether he authorized anyone at the FBI to serve as an anonymous source in news articles.
The charges were brought by U.S. Attorney Lindsey Halligan in the Eastern District of Virginia, who was sworn into the the position on September 22 and secured the indictment three days later – just prior to the statute of limitations expiring.
The ‘Investigative Missteps’
Judge Fitzpatrick identified 11 separate issues with the government’s handling of the case, citing what he called “a disturbing pattern of profound investigative missteps” that he said could have undermined the integrity of the grand jury proceedings.
The dispute partly centers on materials seized years ago from Comey’s friend and former attorney, Columbia Professor Daniel Richmond, during a previous leak investigation. According to the judge, the government exceeded the scope of the original warrants issued in that case and may have failed to properly screen out potentially privileged communications between Comey and Richmond before reusing that material in this new prosecution.
The judge also found that an FBI agent who testified before the grand jury had recently viewed potentially privileged Comey-Richmond communications. “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,” Fitzpatrick wrote.
Furthermore, the judge criticized several statements made by Halligan to the grand jury. The specific lines are redacted, but, in one example, he said the government misstated the law in a way that implied Comey did not have a Fifth Amendment right not to testify. The U.S. Constitution protects a defendant’s right not to testify and jurors are not permitted to draw negative conclusions from that choice.
Judge Fitzpatrick concluded this combination of alleged errors and missteps warrant the rare step of releasing normally highly secret grand jury materials to a defendant.
Defending the Prosecutors
Attorney Mike Davis of the Article 3 Project disagreed, calling the judge’s ruling “nonsense” and “high irregular” in its own right in an
X post on Monday.
“Magistrate Judge William Fitzpatrick–appointed by partisan DC-area Democrat judges in 2022–is going out of his way to carry water for James Comey. Fitzpatrickthr–through his highly irregular ruling–is grasping at straws to make his findings that Lindsey Halligan (somehow) did something wrong. She did not,” he wrote, in part. “They know the evidence against Comey is damning… they are doing everything they can to stop Lindsey Halligan.”
Prosecutors, meanwhile, challenged the decision by asking a separate judge to pause the order. “The government believes the magistrate judge may have misinterpreted some facts he found when issuing the latest order to release the grand jury materials to the defendant,” they wrote in a filing.
U.S. District Court Judge Michael Nockmanoff agreed to issue a stay on the order, alerting the feds to file their objections by the end of business on Wednesday and giving Comey’s team until Friday to respond to the government’s objections.
If Comey’s legal team is ultimately granted access to the grand jury materials, they are likely to use them in support of a motion to dismiss this case entirely. The former FBI director denies any wrongdoing and is pursuing several challenges aimed at getting the charges thrown out before trial, which is currently set for January.
