Comey Moves To Dismiss
You have choices about where you get your news and analysis. I’m grateful you’ve chosen to read Civil Discourse. If you value clear, independent insight into the law and our democracy, I hope you’ll consider a paid subscription. Your support makes the newsletter possible. Thank you for being here with me.
Today, as expected, former FBI Director James Comey asked a federal judge to dismiss the indictment against him. He filed two motions:
A motion to dismiss the indictment because “the government has singled out Mr. Comey for prosecution because of his protected speech and because of President Trump’s personal animus toward Mr. Comey.” The defense argues that the case is “a vindictive and selective prosecution” and that it “violates the First Amendment, Due Process Clause, and equal protection principles.” The motion argues that the only proper remedy is dismissal of the case, with prejudice, meaning it cannot be refiled. Comey’s lawyers write that “Any lesser remedy would be insufficient in light of the government’s flagrant misconduct and the need to deter the government from bringing further unconstitutional prosecutions.”
A motion to dismiss the indictment, arguing it’s “fatally flawed” because the appointment of Trump’s U.S. Attorney for the Eastern District of Virginia, Lindsey Halligan, violated the Appointments Clause and the statute authorizing appointments of interim U.S. Attorneys. That provision allows a president to appoint an interim U.S. Attorney for 120 days. After 120 days elapses, if the president hasn’t managed to put a Senate confirmed nominee in place, the local district court selects a U.S. Attorney to serve until that happens. Comey’s lawyers argue that because Halligan, “who purported to secure and sign the indictment was invalidly appointed to her position as interim U.S. Attorney ... the indictment is a nullity and must be dismissed.” Again, they argue for dismissal with the prejudice, so that the government cannot refile charges against Comey at a later date.
Both motions are strong and it would be unsurprising, after briefing and oral argument, to see one or both of them granted and the prosecution dismissed. There’s a subtle factor at work here too, one that’s more difficult to explain. These motions aren’t just substantively meritorious, they are exceptionally well researched, organized, and written. Sometimes, judges find themselves in the position of having to sift through the arguments one or the other of the parties to a lawsuit has made in order to do justice. In other words, judges, at least to some extent, try to do the right thing and reach the right conclusions in a case, not penalizing the client if the lawyer’s argument is poorly organized and the judge has to piece it together to determine who has the right of it.
That won’t be necessary here. The analysis in the defense motions is immaculate. And while that might not seem like a matter worth noting, it speaks volumes about the quality of the legal representation Comey has. It also inspires confidence. The Judge will understand which lawyer can be replied upon when the parties are in his courtroom. These motions make the right arguments and cover all the points necessary to support them. They are winners.
In advance of today’s motions, Halligan went on the attack against Comey lawyer, Pat Fitzgerald. She wants him out of the case. She’s smart to be afraid of him, because in the battle between prosecutor and defense lawyer, she is clearly outmatched. She did it with an obscure procedural motion, one asking the Judge to expedite his decision on a motion she had filed previously.
That motion was one for “Implementation of Filter Protocol,” which requires a little explanation. Stick with me here.
DOJ uses “filter teams” to screen evidence seized in an investigation, including evidence involving attorney client privilege, where it wants to be able to use that evidence, but some of it may be privileged, which means prosecutors can’t have access to it. So a “taint team” or “filter team” is used to evaluate the evidence and make sure nothing privileged goes to the case team. Back on October 13, the government filed a request to use a filter team to review electronic evidence (likely emails) that it said was “obtained from an attorney” in a prior investigation.
It wasn’t at all clear what they were talking about. But under local rules in the Eastern District of Virginia, the defense had 14 days to respond. Sunday night with no warning, the government asked the Judge to require a quicker response. One problem, the government was out of time to make that request to expedite under local rules. Monday evening, Judge Michael Nachmanoff denied that request on that basis—an embarrassing error for a U.S. Attorney to make and one that suggests she is still operating without the counsel of anyone familiar with the local rules in her district.
But the story doesn’t stop there, because in her motion to expedite, Halligan came out with a startling explanation for why she needed to fast track the filter team process. She alleged that Comey defense lawyer Fitzgerald had been complicit with Comey in an improper disclosure of classified information in the past. She argued that meant Fitzgerald has a conflict and should possibly be disqualified from participating in the Comey’s defense.
For starters, the argument that Comey would have to be removed over such a conflict is just wrong. Even if Halligan had gotten it right (and she didn’t), this is the kind of conflict Comey could waive if he wanted Fitzgerald to stay on as his lawyer. But more importantly, Halligan got the facts wrong. And Fitzgerald promptly fired back, writing that the government’s claim that Comey used him “to improperly disclose classified information” and the government’s implicit assertion that Comey and Fitzgerald were involved in criminal activity together is “provably false” based on publicly available information.
The defense offered two main reasons as to why the Judge should reject Halligan’s motion to expedite:
Comey is entitled to all the time the rules provide him with with to respond.
The defense wrote that “based on the defense’s review to date, it appears that the government’s continued review of the materials is unlawful.” They couched the argument as “it appears”, because it’s not at all clear in the government’s motion what they want to look at and prosecutors declined, before filing their filter team motion, to discuss it with the defense, as prosecutors typically do, to see if they could work out an agreed upon process.
Comey’s argument is heavily redacted. He explains why in a footnote: “The government designated discovery containing some of the information in these sentences as Protected Materials under the Protective Order in this case. Although the defense sees no reason why this information cannot be made public, out of an abundance of caution, the defense is redacting these sentences from public filing in the first instance.” That makes it difficult to understand all the details here, but we can piece together enough to support the defense’s conclusion that they share “the government’s desire to avoid delay. But that desire does not give the government license to conduct an unlawful review or run roughshod over Mr. Comey’s privilege.”
The government’s defamatory comments accusing Comey’s lawyer, Fitzgerald, of committing a crime with him fail to provide a basis for granting the government’s motion to expedite.
The implicit allegations against Comey and Fitzgerald appear to stem from events shortly after Comey was fired by Donald Trump. Fitzgerald seems to have been among Comey’s lawyers, and Comey shared some memos with him, after scrutinizing them to make sure they didn’t contain classified information (Comey, as head of the FBI, would have been the classifying authority). At a later date, the government “upclassified” some information to “confidential”—the lowest level of classification. Upon learning this had taken place, Comey had his lawyers contact the FBI to advise them they were in possession of material that had been newly reclassified. It took the FBI months to get back to them, quite an indication of how important they thought the information was, but Fitzgerald was ultimately asked to destroy it and did so immediately and voluntarily.
The defense makes their position clear: “The implicit assertion lead defense counsel and Mr. Comey engaged in criminal activity by doing so, is provably false and in any event provides no basis to grant the motion to expedite.” They have the receipts. A 2019 Inspector General report concluded that there was no leaking of classified information to the press by either Comey or his counsel. “Full stop,” Fitzgerald writes. DOJ declined to prosecute anyone over the allegations.
In a footnote, we get a little more worthwhile detail about the upclassification. “The portion of the memorandum the review team determined should be classified as ‘Confidential’ concerned the President’s reference to then National Security Advisor Michael Flynn’s questionable judgment in not having notified the President sooner of a call from the leader of a particular country…In that context, President Trump compared certain countries to a smaller country and the upclassification treated the name of a smaller country as classified for fear of offending that country…Mr. Comey’s reaction to the upclassification was: ‘Are you guys kidding me?’…A federal court in unrelated litigation brought under the Freedom of Information Act (‘FOIA’) ultimately rejected all but one of the subsequent classifications…The classification of the memorandum has been addressed in subsequent litigation and the single word that remains ‘CONFIDENTIAL’ is the name of a single country.” That vignette illustrates the abject weakness of Halligan’s claims about Fitzgerald.
The defense argued that Halligan lacked a good faith basis for the smear. It’s a reprehensible tactic for a federal prosecutor to use, something that would have had consequences in any other administration. There is little if any prospect of that happening here, short of referral to a bar grievance committee.
Halligan may have had some experience with the law surrounding filter teams, because she was at least tangentially involved in Trump’s efforts to prevent one from reviewing evidence in the Mar-a-Lago case so the government couldn’t use it against him. She is on the Supreme Court brief, although along with other lawyers, including people with both experience with filter teams and Supreme Court advocacy, so it’s unclear how much she participated in or learned from this process. But as she’s roundly criticized as being inexperienced, it’s only fair to point out she may have some here. Of course, that could also hurt her, as it means she should understand that violating the rules in this area can result in a taint that forces the removal of agents and/or prosecutors from a case if they’ve reviewed prohibited evidence.
The defense has until October 27 to formally respond to the government’s request to expedite.
There are pitfalls everywhere for the unwary in criminal cases. Attorneys are like doctors. You probably wouldn’t see an obstetrician for brain surgery. An insurance lawyer may not be qualified to be a prosecutor. And in either setting, not sticking to your area of expertise can have fatal consequences, with doctors to the patients, with lawyers, to their cases. Lindsey Halligan is no Pat Fitzgerald. The attempt to besmirch his reputation was a cheap shot, and one that will undoubtedly misfire.
We’ve already seen the Senate balk at Trump’s choice of Ed Martin to be U.S. Attorney for Washington, D.C., and Alina Habba for New Jersey. If Comey’s motion arguing Halligan was illegally appointed succeeds, it will fall to the local district court to appoint a suitable replacement. There are good reasons presidents aren’t permitted to appoint U.S. Attorneys without Senate confirmation (or judicial intervention in the case of undue delay). We’re seeing them on full display here. Trump may have set out to get revenge in this prosecution, but the defense is charting a different course.
We’re in this together,
Joyce
Your columns are always excellent, but this is particularly so!
One of Trump’s - and Bondi’s - fatal flaws, is that they can only write diatribes and campaign oratory, not legal briefs.
And, apparently, the DoJ operates as Trump does—all knee jerk, no research.