It’s been a day of ping-pong in court in the Comey case,
with pleadings and rulings volleying back and forth all day long concerning
whether the government is required to turn over transcripts from grand jury
proceedings. Grand jury transcripts are sealed to protect the integrity of
investigations, and it’s extremely rare for a judge to make them available to a
defendant. But that’s exactly what’s happening in the prosecution of the former
FBI director. That’s because there are credible allegations of misconduct
before the grand jury.
Misconduct is a word that can cover a lot of ground.
We’ve been discussing some of it, like vindictive or selective prosecutions,
which violate constitutional guarantees of due process. Prosecutors possess
enormous power over people’s lives, and that power is too great to allow abuse
of it to go unaddressed. People’s lives hang in the balance—if prosecutors can
abuse their powers, innocent people can go to prison. Now, amplify the idea of
abuse of power with a president who is directing the Justice Department to
punish his enemies and reward his friends, and you have a sense of just how
serious this moment is.
So, the issues involved here are incredibly important for
the future of our democracy, but it becomes something of a muddle when the news
reports you see are about dueling pleadings. A critically significant situation
starts to feel picayune. We can’t afford to let that happen, so tonight,
we’ll spend our time together dissecting what’s happening and its meaning. Last
week I wrote to you that “there are strict rules governing
prosecutors’ interactions with grand jurors and it’s not beyond the realm of
possibility that someone with no prosecutorial experience could have
transgressed them.” That turns out to have been on point.
The verdict is in on the maiden grand jury performance of
Lindsey Halligan, the insurance lawyer Trump picked to replace an experienced
prosecutor who refused to indict the Comey case because there wasn’t evidence
to support it. The Judge found plenty to find fault with.
To understand what happened today, we need to know
how we got here. The government wanted to use evidence from another proceeding
in this case, but some of that evidence was protected by the attorney-client
privilege. The government asked the Judge to permit them to use a “filter team”
to evaluate the evidence to decide what the prosecutors in this case could use
without violating the privilege. There are two judges involved: District Judge
Michael Nachmanoff, who is hearing the case, and Magistrate Judge William
Fitzpatrick, who is hearing some of the discovery disputes.
In the course of
the proceedings before Magistrate Judge Fitzpatrick, problems came to light
involving Halligan’s presentation to the grand jury and Comey’s lawyers filed a
motion asking for disclosure of the grand jury minutes, in part because “the
agent who served as a witness in the proceedings may have been exposed to Mr.
Comey’s privileged communications with his attorneys and thus may have conveyed
that information to the grand jury.” (If you want to know more about the filter
team dispute after you’ve read tonight’s post, the dense procedural
history of the case is laid out here).
As the questions about the proceedings before the grand
jury became more complicated, the government suggested that Judge Fitzpatrick
could review the grand jury materials privately to assist him in making a
decision about whether they needed to be disclosed to the defense. He reviewed
them, along with the parties’ briefs and oral arguments. Monday morning,
he issued his decision.
I like a judge who clarifies both the issue and the
decision they’ve reached (called “the holding”) in the first paragraph of an
order, instead of making you work for it or wait until the concluding sentences
to figure out where this had been headed all along. This Judge does not
disappoint. The bottom line is in the first paragraph of Judge Fitzpatrick’s order.
The issue, the Judge explains, is: “whether there are …
grounds to justify the disclosure of grand jury materials to the defense.” He
concludes that “the record in this case requires the full disclosure of grand
jury materials.” He goes on to clarify that while “this is an extraordinary
remedy,” Comey’s “factually based challenges … to the government’s conduct and
the prospect that government misconduct may have tainted the grand jury
proceedings” mean the government is required to turn over grand jury materials
to the defense “under these unique circumstances” in order to “fully protect
the rights” of the defendant.
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The burden a defendant in a criminal case has to meet for
a judge to make an order like this one is very high, because protecting grand
jury secrecy is essential to protecting the integrity of the process. The Judge
notes that a defendant has to show that “‘particularized and factually based
grounds exist to support the proposition that irregularities in the grand jury
proceedings may create a basis for dismissal of the indictment,’” and that the
“‘burden [cannot] be satisfied with conclusory or speculative allegations of
misconduct.’” That suggests that Comey’s lawyers came forward with information
of compelling significance.
The order traces the history of the “other
investigation”—the one prosecutors in the Eastern District of Virginia
apparently wanted to use in the Comey case, and which led to the filter team
proceedings. It was called Arctic Haze and took place back in 2019 and 2020. It
involved Comey’s friend Daniel Richman, whom Comey hired as one of his lawyers
after Trump fired him, and allegations that government property in the form of
classified information was stolen and then provided to journalists by Richman.
It
turns out that the Judge found evidence that the government violated the
attorney-client privilege when it executed search warrants in that case, and
that the government violated a fundamental requirement of the Fourth Amendment,
that agents executing a search warrant only seize materials that the warrant
authorizes them to take away. That case did not result in any indictments, and
the search warrants were never tested in court.
Fast forward to 2025, when the government decided to
“rummage through” the Arctic Haze evidence to see if it could help with the
Comey prosecution. The Judge writes, “Inexplicably, the government elected not
to seek a new warrant for the 2025 search, even though the 2025 investigation
was focused on a different person, was exploring a fundamentally different
legal theory, and was predicated on an entirely different set of criminal
offenses.” It should have been routine for the government to do that, but as the
Judge notes, that would have taken time, and the government only had 18 days
left before the statute of limitations lapsed when it took up the old file.
It was during that new review of the evidence that an
agent realized there were potential attorney-client privilege problems with
what he was seeing and what the team was using. He advised an FBI lawyer and
the agent who ultimately went before the grand jury to testify when the
indictment was obtained about that problem.
But the agent who testified,
instead of removing himself from the case because his knowledge was tainted by
the exposure to potential attorney-client communications, went in and testified.
The Judge calculates that the government, “for reasons that remain unclear,”
waited for 31 days from the date it began reviewing the old materials and 18
days after the FBI lawyer was advised there was a problem, to ask the court for
permission to review the evidence using a filter team. That left the court with
the “prospect that privileged materials were used to shape the government’s
presentation and therefore improperly inform the grand jurors’ deliberations.”
There’s more, though, in the form of improper statements
the prosecutor—Trump’s handpicked loyalist Lindsey Halligan—made to the grand
jury. These are the kind of errors that, in a normal Justice Department, would
lead to a review by the Office of Professional Responsibility and sanctions
against the prosecutor who behaved in this manner if it was determined that she
violated the law, Department rules, and a defendant’s rights, as the Judge
suggests she may well have. There are two problematic areas, slightly obscured
by redactions. But we can read the tea leaves:
Halligan may have misled the grand jury about the
strength of the evidence against Director Comey by making serious errors when
she advised them about his Fifth Amendment rights. She may have left grand
jurors with the impression Comey had to prove his innocence, rather than the
actual burden of proof in a criminal case, which requires the government to
prove guilt beyond a reasonable doubt.
The Judge called what happened here “a disturbing pattern
of profound investigative missteps, missteps that led an FBI agent and a
prosecutor to potentially undermine the integrity of the grand jury proceeding”
and granted Comey’s request for access to all of the grand jury proceedings. He
ordered the government to turn over those materials by 3 p.m. on Monday.
Predictably, the government pushed back.
The government asked District Judge Nachmanoff for an emergency stay.
They wanted at least a week. The Judge gave them until 5 p.m. Wednesday to
file their objections to the magistrate judge’s order. The defense has
until Friday to respond. Judge Nachmanoff indicated he would decide
the matter based on those pleadings, in other words, without any oral argument.
Whether Comey will ultimately get access to the grand
jury materials is now up to Judge Nachmanoff. The larger issue that looms is
whether this situation (independent of the motions for selective and vindictive
prosecution we have previously discussed, along with one regarding the
propriety of Halligan’s appointment as U.S. Attorney) will provide a basis for
dismissal of the indictment.
Judge Fitzpatrick suggested that it might: “The
Supreme Court has recognized that a district court may use its supervisory
power ‘to dismiss an indictment because of misconduct before the grand jury’ …
The Supreme Court has also recognized that this supervisory power of federal
district courts should be used ‘to implement a remedy for violation[s] of
recognized rights, to preserve judicial integrity by ensuring that a conviction
rests on appropriate considerations validly before the jury, and finally, as a
remedy designed to deter illegal conduct.’” He concluded, “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.”
This is about Jim Comey and whether the case against him
will be dismissed or whether he will go to trial. But it’s also a tragic
example of what has happened to the Justice Department, which is exposed as a
political tool for the president to wield against his enemies when he wants to.
Across the country, prosecutors and agents are working hard every day to
protect the American people. They are capably pursuing bank robberies, drug
trafficking, cybercrime, and many other cases.
What is happening here dishonors
their commitment and is a disservice to the American people. Being aware is
necessary to demand better, and to understand that this ping pong game of a
case is among the essential reasons we cannot give up. If Donald Trump can
abuse the criminal justice system like this, democracy is not safe, and we are
not safe.
We’re in this together,
Joyce Vance
