The judge overseeing former FBI Director James Comey’s upcoming trial on charges of lying to Congress and obstruction of justice intervened late Monday to temporarily block a sweeping order for prosecutors to turn over grand jury materials to Comey’s lawyers.
US Magistrate Judge William Fitzpatrick cited “a disturbing pattern of profound investigative missteps” in ordering the rare move, with some legal experts suggesting the case against the 64-year-old could even be thrown out as a result.
However, in response to an appeal by interim US Attorney for the Eastern District of Virginia Lindsey Halligan, US District Judge Michael Nachmanoff ordered a stay of Fitzpatrick’s order.
“The Magistrate Judge’s new order is contrary to law and the government should be allowed to object to the order,” read the appeal, which added that Fitzpatrick “may have misinterpreted some facts he found when issuing the latest order to release the grand jury materials to the defendant.”
Nachmanoff gave the Justice Department until 5 p.m. Wednesday to file its full brief objecting to Fitzpatrick’s order, with Comey’s side having until 5 p.m. Friday to respond.
In his 24-page order, Fitzpatrick accused the feds of flouting attorney-client privilege to secure an indictment of President Trump’s longtime nemesis, claimed Halligan made “fundamental misstatements of the law” to the grand jury, and flagged unexplained irregularities in the transcript of proceedings.
Fitzpatrick took issue with investigators’ handling of four search warrants executed by the FBI in 2019 and 2020 as part of the bureau’s Arctic Haze probe into how classified information was leaked to news outlets.
The warrants targeted Comey’s friend and lawyer Daniel Richman, a professor at Columbia Law School, and sought information from his iPhone, iPad, iCloud account, and hard drive.
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Fitzpatrick found that while the government allowed Columbia, Richman and his attorney to identify privileged content in what they found, they “never engaged Mr. Comey in this process even though it knew that Mr. Richman represented Mr. Comey as his attorney as of May 9, 2017, and three of the four Richman Warrants authorized the government to search Mr. Richman’s devices through May 30, 2017, 21 days after an attorney-client relationship had been formed.”
The judge also noted that while the FBI “was permitted to search all of the Richman materials,” they could only seize evidence of theft of government property and retention of national security information, both markedly different offenses than those with which Mr. Comey is currently charged.
Fitzpatrick said that while there is no evidence privileged communications between Comey and Richman were directly shared with the grand jury, “it is equally true that the materials seized from the Richman Warrants were the cornerstone of the government’s grand jury presentation.”
The judge noted that only one FBI agent appeared before the grand jury, despite having been given “a limited overview of privileged communications between” Comey and Richman.
“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.
He added elsewhere: “The government’s position that privileged materials were not directly shared with the grand jurors ignores the equally unacceptable prospect that privileged materials were used to shape the government’s presentation and therefore improperly inform the grand jurors’ deliberations.”
On top of that, the judge laid into Halligan for apparently suggesting to the grand jury that Comey not testifying in his defense should be interpreted as a sign of guilt. (Halligan’s exact comment was redacted from the judge’s order.)
“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,” Fitzpatrick wrote.
“The prosecutor’s statement … 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.”
The second statement by Halligan, also redacted, “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.”
Comey was indicted Sept. 25 on charges of lying to Congress and obstruction of justice in connection with September 2020 testimony before the Senate Judiciary Committee. He is set to stand trial beginning Jan. 5, 2026.
The former FBI boss and his legal team are challenging the case against him on other grounds, including that Halligan was illegally appointed and that the prosecution itself is unlawfully vindictive.
