What Happens When The Government Loses Its Credibility: The Comey Prosecution

This is one of those long posts we occasionally have when a judge files a highly significant order. My apologies for starting the week off like this, but it’s a significant decision in a very important case. Understanding the details is critical to seeing the significance of a matter like this. Thanks for being here with me and understanding that.

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.

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.

• Halligan also made a statement to the grand jury, which is redacted in the order, but suggested that the grand jurors could “be assured the government has more evidence, perhaps better evidence,” than what it presented to the grand jury and that it could offer at trial. That is staggeringly wrong and so completely violates fundamental legal rules that it should deliver a fatal blow to the indictment if the redacted portion of the paragraph bears out the conclusion the Judge reached.

There are also some discrepancies regarding whether the government has turned over a full transcript of the proceedings. The Judge addressed them, noting that it’s likely that either the transcript is incomplete or the government has presented an indictment that the grand jury did not review.

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