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Blind Man’s Bluff in the Jim Comey Docket

November 22, 2025/41 Comments/in 2016 Presidential Election, emptywheel, Jim Comey prosecution, Weaponized DOJ /by emptywheel

Threshold issues

The very last thing Judge Michael Nachmanoff asked Michael Dreeben in Wednesday’s hearing on Jim Comey’s bid to throw out his indictment for vindictive prosecution, before turning to prosecutors’ argument, was whether he should wait and address all of Comey’s challenges at once or deal with vindictive prosecution on its own.

THE COURT: All right. Thank you. But before you sit down, let me just ask you, do you think that the other pending motions, including the issue of literal truth and ambiguity and the other matters that are yet to be litigated, are so wrapped up in vindictive prosecution that the Court should deal with them all at one time, or do you think that the Court can and should deal with vindictive prosecution separately?

MR. DREEBEN: I think vindictive prosecution, like our motion based on the appointment of the U.S. attorney, are threshold matters that the Court should resolve as a threshold. Mr. Comey would like to see both of those motions resolved because they both go to the very heart of whether a prosecution in this case is permissible, one by virtue of a challenge to the official who brought it, the other by virtue of whether it complies with the Constitution to bring a prosecution at all.

Our other motions are very important, and we have a series of them that challenge other aspects of the prosecution. As I’m sure the Court is well aware, there are issues relating to the conduct of the prosecutor in the grand jury. But this one and the appointments issue stand at the threshold. They’re the gateway to all further motions, and those should be resolved at the outset of the case, in our view.

Dreeben, calling vindictive prosecution and disqualification (which Judge Cameron Currie had heard the week before) “threshold” matters, said they should be decided at the outset.

That may explain Nachmanoff’s decision at the very end of the hearing to deny Jessica Carmichael’s request to move up the next motions hearing — the one that would address the other issues Nachmanoff asked Dreeben about — from December 9, what would be almost three weeks (including the Thanksgiving holiday) from that day, to the prior week.

There’s also a motion to move up the next oral argument, which is set on December 9th. I commend everyone’s enthusiasm for trying to move this even faster, but the Court is reluctant to do that. I believe that it was Ms. Carmichael that had a conflict, and I will permit counsel to appear without Ms. Carmichael, who’s local counsel, so that she doesn’t have that issue, but I will keep the current schedule that we have.

If Nachmanoff does treat the vindictive prosecution challenge as a threshold issue, then he may hope to rule before holding another hearing. If Nachmanoff were to rule for Comey on vindictive prosecution (or Currie were to disqualify Lindsey Halligan, as is likely), the December hearing might be delayed anyway during an appeal, possibly all the way to SCOTUS.

It’s worth noting that Comey’s appellate lawyers — Ephraim McDowell in the disqualification hearing and Dreeben in the vindictive prosecution one — argued these District level motions hearings. As I noted when they were added, Comey walked into these challenges preparing to fight this all the way to SCOTUS.

The Comey prosecution may go away, pending appeal, in less than 20 days, via one of at least two ways. Indeed, given Judge Currie’s promise to rule before Thanksgiving, it could go away in the next week (again, pending appeal).

I lay that out as a way to understand some other things that have happened since Nachmanoff’s hearing.

The drama

But first, the drama, which started shortly after Dreeben answered that question about threshold issues.

Loaner AUSA Tyler Lemons had barely started his argument when Nachmanoff questioned the prosecutor’s claim that the grand jury, “returned a true bill.”

THE COURT: Well, we’ll have some questions about that —

MR. LEMONS: That’s correct, Your Honor.

THE COURT: — but I’ll let you get through your argument.

Shortly thereafter, Nachmanoff challenged Lemons’ claim that Comey was relying on, “newspaper articles, anonymous sources, innuendo, [and] conjecture.”

THE COURT: Well, let me stop you there. With regard to the words of the president, whether it’s the post from September 20th or his answers to questions from reporters, you’re not suggesting that those aren’t things the president has said, are you?

Immediately before the drama of the declination memo, Nachmanoff bristled at Lemons’ insinuation that Erik Siebert, whom — the EDVA judge noted — had been appointed as US Attorney by the judges of EDVA, was involved in “machinations.”

MR. LEMONS: Absolutely, Your Honor. What I’m referring to is the newspaper reports that are relying on anonymous sources as to the machinations of former U.S. Attorney Siebert or to other decisions that essentially are not directly quoting the president or someone else.

THE COURT: Well, let me stop you there.

MR. LEMONS: Yes, sir.

THE COURT: I’m not sure what machinations you’re referring to. Are you referring to the fact that Mr. Siebert was the interim U.S. attorney and then appointed by the Court, and then either resigned on September 19th or was fired by the president on September 19th?

MR. LEMONS: Yes, Your Honor. And I guess more specifically referring to any sort of — across, it sounds like multiple cases, not just this case — any reluctance or willingness to pursue cases in this Court.

That’s when Nachmanoff spent several minutes slowly cornering Lemons into admitting, in spite of direction from Todd Blanche’s office to avoid doing so, that he did not just know of a declination memo, but had read it.

THE COURT: Well, was there a declination memo?

“Was there a declination memo?” was question one. Questions ten and eleven in the colloquy, which also included Nachmanoff reminding Lemons he was “counsel of record in this case” and then getting him to explain that Todd Blanche’s office had instructed him to dodge these questions, went this way:

THE COURT: And had one been prepared?

MR. LEMONS: My understanding is that a draft prosecution memo had been prepared.

THE COURT: All right. And did you review that?

MR. LEMONS: I — yes, Your Honor, I did.

That still wasn’t the most dramatic part of the hearing, of course.

Lemons finished his argument, and then Nachmanoff returned to that question, the grand jury presentment. From the start, he mentioned it would be useful to hear from Lindsey, but he did allow Lemons to explain what he thought had happened, first.

THE COURT: Well, I have a couple more questions before you sit down.

MR. LEMONS: Okay.

THE COURT: At the beginning of your remarks, you said that the grand jury had returned an indictment and there’s a presumption of regularity with what happened, but as we know from other litigation in this case, there have been some questions and some attempts to resolve those issues, and Ms. Halligan submitted a declaration on Friday that explained, in part, in response to the question from Judge Currie about what happened after the grand jury began to deliberate, and then what went on —

MR. LEMONS: Yes, Your Honor.

THE COURT: — after that. And I’ll ask you these questions, but it may be more direct to ask Ms. Halligan directly.

In spite of noting that it might be easier if Lindsey explained all this, Nachmanoff let Lemons explain what he understood had happened at length, including that the EDVA grand jury coordinator had had direct communications with the foreperson.

The judge asked Lemons the question about whether the full grand jury had voted on what he referred to as the second indictment three times, which is when he finally invited Lindsey to speak, as counsel of record. She barely said good morning before she interrupted the judge.

THE COURT: And so that the record is clear, when the grand jury return was taken, only the foreperson was in the courtroom, correct, the rest of the grand jurors were not present; is that right?

MR. LEMONS: Can I have a moment, Your Honor?

THE COURT: You can. Ms. Halligan, you can come to the podium. You’re counsel of record. You can address the Court. It might be easier. Good morning.

MS. HALLIGAN: Good morning.

THE COURT: So am I correct that, as is the usual —

MS. HALLIGAN: No, Your Honor.

THE COURT: — practice, that the grand jurors were not present, just the foreperson?

MS. HALLIGAN: The foreperson and another grand juror was also present, and Judge Vaala corrected the record in open court, and the foreperson said in open court, We only no true billed Count One, we want to true bill Count Two and Three, and the foreperson signed that indictment.

THE COURT: I’m familiar with the transcript.

MS. HALLIGAN: Okay.

THE COURT: But I just wanted to make sure that the entire grand jury never had the opportunity to see the second indictment. You may sit down. Thank you.

The government, of course, has now refuted this account, thinking it helps them to claim that Halligan (and Lemons) stood before the judge and misinformed him, all because a confused foreperson said that the entire grand jury had voted for the two-count indictment, which served primarily to corrode any presumption of regularity DOJ is afforded.

From the start (and so when he asked whether he should wait on the other challenges), Nachmanoff had at least those two questions, the grand jury and the declination memo, in mind, and also, probably, how Lindsey could have assessed the case in the three days before indicting.

THE COURT: Well, that’s why I was asking you the questions about the declination memo and the prosecution memo, because she was appointed on September 22nd, and she went into the grand jury on the 25th, and I believe what you’re saying is that she made an independent evaluation of the case and concluded to move forward with it in that time period, in those couple of days. And so my question is, what independent evaluation could she have done in that time period?

MR. LEMONS: Your Honor, I think that — that discussion is inevitably one that we would have if you order expanded discovery.

Michael Dreeben, in rebuttal, asserted that the irregularity with the indictment was obtained is yet another cause to dismiss the indictment, and asserted that Nachmanoff didn’t need to see what the declination memo said to dismiss it.

Nachmanoff closed the hearing not just by denying Carmichael’s request to advance the next motions hearing, but by ordering both parties to brief a case.

I have some housekeeping matters to address. I would like, especially in light of our argument today, both parties to address the case of Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969), and it addresses this issue regarding the foreperson signing an indictment. And I know you have your objections due at 5:00 p.m. today, so I wanted to make sure the government was aware of the Court’s interest in addressing that case, and, of course, the defense can address it in turn when they file their response.

The oddities of a three-judge docket

Now, I’m going through this exercise not to share the drama from the transcript, much of which got covered in real time, but because I want to understand how the hearing on Wednesday — particularly Lindsey’s confession about the grand jury — jumbled what would have happened and will happen in the brief window before December 9, when some or all of this might be launched on its way to appeal, possibly all the way to SCOTUS.

Here’s what happened and will happen in the week since the hearing; I’ve color-coded response chains:

November 19: Vindictive prosecution hearing before Michael Nachmanoff; Nachmanoff denies motions schedule change, orders CIPA schedule, orders briefing on Gaither

November 19: Government objection to Fitzpatrick order giving Comey grand jury transcripts, writing up interactions between grand jury coordinator and grand jury foreperson and seemingly confirming that court reporter left after rest of grand jury left

November 19: Government brief on Gaither (responding to Nachmanoff’s order)

November 19: Insanely stupid Lindsey Halligan interview with NYPost misrepresenting record and attacking Judge Nachmanoff

November 20: Comey Reply on fundamental ambiguity

November 20: Comey Reply on Bill of Particulars (including exhibits on discovery, kicking off graymail)

November 20: Government notice “correcting” record, including return transcript

Later November 20: Comey Reply on his motion for grand jury materials

November 21: Consent motion to set CIPA hearing on December 9 instead of filing CIPA 5

November 21: Comey Response to government objection to Fitzpatrick order

November 21: Motion to dismiss because there is no indictment

November 21: Amended motion to dismiss because there is no indictment

November 24: Comey requested response date on MTD no indictment

November 26: Expected Cameron Currie ruling on disqualification

November 26: Comey motion to suppress due

Start from the end: with a motion to dismiss because there is no indictment, which Comey almost immediately amended. As the citations page makes clear, this is substantially Comey’s response to Nachmanoff’s request for briefing on Gaither.

As Comey explains in a footnote, rather than just responding to Gaither, he’s using belated disclosures — from the discovery about the Fourth Amendment and attorney-client violations, from William Fitzpatrick’s opinion on the grand jury transcript, and regarding the failure to present the second indictment — to submit a separate motion to dismiss to be considered along with the other ones.

Mr. Comey respectfully submits that the Court can and should consider this motion along with Mr. Comey’s other dispositive motions. ECF Nos. 59 [vindictive], 60 [disqualification], 105 [fundamental ambiguity]. Those motions are fully briefed, and the government has filed its notice concerning Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969). See ECF No. 201. The defense requests that the Court direct the government to file its response to this Motion—if any—by November 24, 2025.

He is effectively attempting to squish this motion to dismiss into the window when Nachmanoff will be deciding the vindictive prosecution motion and Judge Cameron Currie will be deciding the disqualification motion, with the unrealistic request that the government have to respond over the weekend to also squish it into that same window.

Dreeben did say he was going to file another motion to dismiss and Nachmanoff did not object, but he’s trying to squish that motion into this window when the judges are deliberating.

The new motion to dismiss overlaps in significant part with two other filings submitted since the hearing: Comey’s reply on his request to get grand jury transcripts, and Comey’s response to the government’s objection to William Fitzpatrick’s order that he get those transcripts.

In his reply, Comey explains how all of these documents fit together.

1 The absence of a valid charging instrument will be the basis of a forthcoming motion to dismiss [that is, the Gaithner briefing as motion to dismiss].

2 As the Court is aware, Mr. Comey will file his response to the government’s appeal of Magistrate Judge Fitzpatrick’s order for the government to disclose the grand jury proceedings on Friday, November 21, 2025. This reply brief responds to the government’s arguments in opposition to the motion (ECF No. 184) to disclose the grand jury proceedings and highlights additional irregularities that have surfaced further warranting disclosure. Mr. Comey’s response to the government’s appeal of Magistrate Judge Fitzpatrick’s order will explain why Judge Fitzpatrick’s ruling is well supported by fact and law warranting affirmance and address the government’s opposition to that ruling. These litigation streams present two related, but separate, avenues to order the government to produce the grand jury proceedings.

And the seeming cause for amendment to the motion to dismiss — a replacement of one claim about how Lindsey Halligan integrated privileged material in the grand jury…

Ms. Halligan referred to those materials in her presentation to the grand jury and elicited extensive testimony about privileged materials from Agent-3. ECF No. 192 at 14.

With another…

In turn, Ms. Halligan extensively questioned Agent-3 about communications between Mr. Comey and Mr. Richman during Agent-3’s testimony before the grand jury. ECF No. 192 at 14.

… reveals one of the things going on. In all three documents, Comey aggressively accuses the government of purposely seeking out privileged material in advance of the presentment.

Agents knowingly reviewed and printed out dozens of pages of privileged communications between Mr. Comey and his lawyers and appear to have presented at least certain of those privileged communications to the grand jury in this matter.

Thus the delicate balance Comey tried to correct with the amendment: they’re pretty sure Miles Starr did not just present tainted testimony, but that Lindsey cued him with tainted questions, but that overstates what they can say without seeing the grand jury transcript.

Both those sentences must rely on this passage of Fitzpatrick’s opinion (they cite the unredacted version rather than this one; the redacted discussion starts on the next page).

The government’s position is that the grand jury materials “confirm the baselessness of the defendant’s claim that privileged information may have been shared with the grand jury.” ECF 172. While it is true that the undersigned did not immediately recognize any overtly privileged communications, it is equally true that the materials seized from the Richman Warrants were the cornerstone of the government’s grand jury presentation. The government substantially relied on statements involving Mr. Comey and Mr. Richman in support of its proposed indictment. Agent3 referred to these statements in response to multiple questions from the prosecutor and from grand jurors and did so shortly after being given a limited overview of privileged communications between the same parties. The government’s position that privileged materials were not directly shared with the grand jurors ignores the equally unacceptable prospect that privileged materials [page break] were used to shape the government’s presentation and therefore improperly inform the grand juror’s deliberations.

Both sides are working at a disadvantage in this argument. The government complained that it couldn’t see what Comey shared in ex parte submission to Fitzpatrick (and, generally, complained that it hadn’t been able to get its filter protocol).

2 Although the docket indicates the government provided the materials for in camera review, Dkt. No. 179, the docket does not reflect that defendant submitted ex parte information to the Magistrate Judge. However, the magistrate judge referenced the defendant’s ex parte notice in its opinion. See Dkt. 191 at 7.

In his response, Comey described some of what was included in that.

Pursuant to Judge Fitzpatrick’s order during the hearing, the defense filed an ex parte sealed submission to guide Judge Fitzpatrick’s review, which was supplemented with evidence that the government had produced to the defendant, such as the privileged communications the government’s agents printed out and used in September 2025 after their warrantless search of the materials seized from Daniel Richman.

[snip]

Mr. Comey plainly had an expectation of privacy in his communications with his lawyer, which was clear from the face of the communications the government agents reviewed and printed in September 2025, ECF No. 172-2 at 2,2 as set forth in the ex parte submission the defense submitted to Judge Fitzpatrick.

But unlike the government, Comey doesn’t know precisely what was said about the Richman texts to the grand jury, in particular whether Halligan’s promise of more evidence — a reference the government did no more than to confirm in its response by saying, “the government anticipated presenting additional evidence were the case to proceed to trial” — pertains specifically to the Comey side of the Richman texts.

Plus, both seem to be trying to hold their fire. Perhaps Comey is waiting on the motion to suppress — which may be held in abeyance if Judge Currie rules for him. Surely, he is guarding his privilege claim.

And, after admonishments from Fitzpatrick, the Loaner AUSAs dropped their reliance on the Richman texts in their Bill of Particulars response, so they’re probably trying to avoid knowing Fourth Amendment violations.

So neither will say what I keep saying: On the morning before the grand jury presentment, Spenser Warren provided others with a two page printout of Richman texts, all of which preceded the moment when the FBI knew Comey had retained Richman. But someone went back into that unscoped material they knew to include privileged texts and printed out at least eight pages of texts, going well beyond the time Comey had retained Richman.

And whatever the reason for the reticence on both sides, unless you are misrepresenting the questions at issue (and remember, there is no transcript of the exchange Comey had with Ted Cruz included among the 14 exhibits that appear to have been presented to the grand jury), there is no sound reason to present any of these texts. None could be proof that Comey had authorized Richman to share this information while at FBI, because Richman had left months earlier. None could be proof that Comey lied to Chuck Grassley on May 3, 2017 about serving as a source for stories on the Russian investigation (which Grassley called the Trump investigation), because they all postdated Grassley’s question. None could be proof that Comey intended to obscure all this in September 2020, because he had already told Susan Collins about all of this on June 8, 2017. Contrary to what Loaner AUSAs claimed in their urgent bill for a filter protocol (authored by James Hayes), nothing in the public record supports a claim that Comey and Richman (and Patrick Fitzgerald) were conspiring to leak classified information.

The only crime Comey committed was exposing Donald Trump’s corruption, which led to a Special Counsel investigation that showed abundant evidence Trump obstructed the investigation into his ties with Russia.

But in his effort to mislead a grand jury to believe that was a crime, Miles Starr may have knowingly and unlawfully surveilled attorney-client communications without a warrant much less a filter protocol.

As of now, Nachmanoff has not ruled on either parallel request to grant Comey grand jury access (he said he would rule on the filings, without a hearing), though a footnote to the motion to dismiss, “reserves the right to supplement this Motion with further facts and argument if and when the grand jury materials are disclosed to the defense.” So unless and until he does, the record will remain what it is, with vague gestures from both sides about a conflict at the heart of this case, potentially excluded from the record if this thing gets appealed.

When caught lying, troll

Meanwhile, of course, Lindsey Halligan is already resorting to the tactics she learned from her boss, falsely misrepresenting a question Nachmanoff posed about Dreeben’s belief, laid out in Comey’s reply to prosecutors’ arguments about imputation (which I laid out here)…

MR. DREEBEN: That is certainly correct, and that is an additional obstacle that supported the court’s factual conclusion that imputation was not appropriate on the facts of the case. But we, of course, have a very different situation. In the hierarchy, the president stands at the top, and he has declared himself to be the chief law enforcement officer of the United States. He has vested in him executive power, which includes supervision of the Department of Justice. The U.S. attorneys help him carry out his responsibility to see that the laws are faithfully executed, and as we argued in the brief, that is not just a theoretical constitutional structural argument; it is actually an argument that applies to the facts of this case because the president has taken on the responsibility and the authority to direct the Justice Department to take actions in the investigatory and prosecutorial realm that he thinks should be taken, and he has, in effect, substituted himself for the U.S. attorney as the decision-maker, and the facts of this case reveal that that’s why his vindictive motive is imputed to the prosecution. No, he didn’t go into the grand jury, but exercising the authority that’s vested in him, he brought about the prosecution through the chain of causation that we described earlier.

THE COURT: So your view is that Ms. Halligan is a stalking horse or a puppet, for want of a better word, doing the president’s bidding?

MR. DREEBEN: Well, I don’t want to use language about Ms. Halligan that suggests anything other than she did what she was told to do. The president of the United States has the authority to direct prosecutions. She worked in the White House. She was surely aware of the president’s directive. She didn’t have prosecutorial experience, but she took on the job to come to the U.S. Attorney’s Office and carry out the president’s directive, and this was a directive to the attorney general. I think we know that the attorney general is highly responsive to the president’s directives. She doesn’t say, Excuse me, Mr. President, this is my job.

The makebelieve US Attorney for EDVA instead falsely claimed this was a direct expression of Nachmanoff’s own opinion.

Interim US Attorney Lindsey Halligan suggested Wednesday that the Biden-appointed judge overseeing the criminal case against former FBI Director James Comey violated judicial conduct rules by asking if she was a “puppet” of President Trump.

District Judge Michael Nachmanoff asked Comey’s defense lawyer if he thought Halligan, the prosecutor who brought the indictment against the former FBI boss, was acting as a “puppet” or “stalking horse” of the commander in chief, during a hearing in an Alexandria, Va., courtroom.

“Personal attacks — like Judge Nachmanoff referring to me as a ‘puppet’ — don’t change the facts or the law,” Halligan exclusively told The Post.

“The Judicial Canons require judges to be ‘patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity’ … and to ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,’” she continued.

Lindsey’s attack in the NYP was similar to the one prosecutors made in their response to Fitzpatrick’s order (which Comey addressed in response).

Federal courts have an affirmative obligation to ensure that judicial findings accurately reflect the evidence. Canon 2(A) of the Code of Conduct for United States Judges requires every judge to “act at all times in a manner that promotes public confidence in the integrity and mpartiality of the judiciary” and to avoid orders that “misstate or distort the record.” Canon 3(A)(4) requires courts to ensure that factual determinations are based on the actual record, not assumptions or misrepresentations. Measured against these obligations and the rule of law, the magistrate’s reading of the transcript cannot stand.

They’re trolling.

They’re doing precisely what Trump always does when caught in a crime: he trolls and attacks rule of law.

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Seventh Circuit Panel Allows Trump To Assault Chicago Residents

November 21, 2025/26 Comments/in emptywheel /by Ed Walker

On November 6 District Court Judge Sara Ellis issued a preliminary injunction barring the federal government from attacking Chicago residents engaged in lawful protests. Judge Ellis also certified a class for this litigation. It consists of

All persons who are or will in the future non-violently
demonstrate, protest, observe, document, or record at Department of Homeland Security immigration enforcement.

The defendants sought a stay pending appeal. On November 19, a panel consisting of Michael Brennan, Frank Easterbrook, and Michael Scudder complied, freeing Trump’s goons to attack us without restraint.

The facts of the case are well known. Masked thugs are caught on camera shoving protesters to the ground and zip-tying them, shooting people with pepper balls, teargassing kids, holding people for hours without charges, and much much more. The evidence is set out in a detailed and very long Opinion and Order entered by Judge Ellis on November 20.

The legal standards for issuance of a preliminary injunction are also well known, at least they used to be before John Roberts and the Fash Five held that Donald Trump cannot be held accountable for breaking the law or violating the Constitution in Trump v. US and then drastically slashed the power of the judiciary to restrain law-breakingl in Trump v. CASA.

The Seventh Circuit Rationale

The panel says that the defendants are likely to succeed on the merits.

A. The order is overbroad

1. The Injunction binds the named defendants, their lawyers and people acting in concert with the defendants. Too broad?

That’s simply absurd. Of course the order binds the defendants and those acting for or in concert with them. They were duly served. They engaged in motion practice, participated in discovery, and appeared at the hearing. They had a full opportunity to be heard. They were found to have violated the constitutional rights of the class members. Perhaps in the future, these three can explain exactly why defendants shouldn’t be enjoined from breaking the law.

2. The panel coplains that the Injunction requires “… the enjoined parties to submit for judicial review all current and future internal guidance, policies, and directives regarding efforts to implement the order….”

No it doesn’t. Here’s the relevant section:

6. It is further ORDERED that Defendants shall issue guidance to officers and agents to implement this Order. Defendants shall file with this Court such guidance and any directives, policies, or regulations implementing the guidance within 5 business days of issuance of the Order, with a continuing obligation to immediately file with this Court any subsequent changes or revisions to that guidance or implementing directives, policies, or regulations through the period of this Order.

This doesn’t call for judicial review. It prevents the defendants from hiding their non-compliance from the attorneys for the class members.

3. The order is too “prescriptive”. “For example, it enumerates and proscribes the use of scores of riot control weapons and other devices in a way that resembles a federal regulation.”

Apparently the panel didn’t realize the extent of the duplicity of the defendants and their lawyers who routinely claim innocence because an order is not precise. For example, the head of the Customs and Border Patrol, Greg Bovino, wrangled with Judge Ellis in open court about the number and location of identifying marks on the costumes of his agents.

Or perhaps the panel thinks one or more of the identified weapons is just fine. Here’s a short list of some of them from §1,c if the Injunction:

… kinetic impact projectiles (KIPs), Compressed Air Launchers (e.g., PLS and FN303), Oleoresin Capsicum (OC) Spray, CS gas, CN gas, or other chemical irritants, 40 mm Munitions Launchers, less-lethal shotguns, Less-Lethal Specialty Impact-Chemical Munitions (LLSI-CM), Controlled Noise and Light Distraction Devices (CNLDDs), Electronic Control Weapons (ECWs)

B. Standing

The panel says the class members have no reason to fear imminent future harm. They should just wait around and see if any federal agents beat them senseless or tear gas their eighborhood. The panel says they know from media accounts that Bovino and his goon squad are gone, so why worry? Perhaps they missed the media reports of violations of the Injunction by defendants within a week of issuance.

Border Patrol and Immigration and Customs Enforcement agents are accused of firing pepper balls at moving vehicles, deploying tear gas and flash bangs in Little Village [a heavily Hispanic neighborhood] and exposing a 1-year-old and her family to chemical munitions as they traveled to a local warehouse store {they shot chemical weapons through the window of the care with the child in the back seat.].

But sure, this insane suggestion is warranted.

C. Irreparable harm to defendants.

The panel quotes this obscene sentence from Trump v. CASA: “Any time that the Government is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Does this authorize Trump’s goons to violate people’s Constitutional rights as long as they claim to be enforcing a statute? Apparently these judges think if Trump claims to be enforcing the law, it’s a terrible harm to, I don’t know, maybe government agents, if they can’t violate our constitutional rights.

D. But maybe they’ll issue their own order

The panel assures us that maybe some day they’ll read the record and think up their own order. They ignore the massive effort put in by Judge Ellis and her staff (special shout-out to her clerks and office staff for the clear and coherent opinions and orders, since the panel just dismissed all of their work.)

I know I speak for the toddlers and families in Little Village, Belmont-Cragin, Albany Park and the rest of my beautiful city when I say how grateful we are for their willingness to at least consider protecting us from chemical attack.

The Bigger Picture

Now Bovino and his goon squad have moved on to Charlotte, Raleigh-Durham, Chapel Hill, and other Democratic cities in North Carolina. They’re using the same tactics. One of the incidents in this story is a Kavanaugh Stop: “… an agent smashed in the window of a US citizen’s truck and the man, who is Hispanic, was temporarily detained.” This is a clear example of the indifference of the judiciary to individual Constitutional rights under the rules set by John Roberts and the other anti-democratic members of SCOTUS.

The only rights the SCOTUS majority will protect are those of the Imperial President.

=======

Update: I had a suspicion that the panel just typed up a couple of sentences from the defendant’s’ motion. Here’s a link to the 24 page motion and a very long appendix. The brief is signed by Brett Shumate and Yaakov Roth, among others, from DoJ. These guys think they are free to assault my neighbors with no restraints. The ugly tone of this motion is, to my perhaps prejudiced eye, mirrored by the ugly tone of the panel.

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Trump Trips over Own Feet Hastening Parallel Retreats

November 18, 2025/80 Comments/in Economics, emptywheel, Epstein /by emptywheel

It is official conventional wisdom.

Trump is retreating on Jeffrey Epstein.

Or rather, Democrats led by Ro Khanna, survivors, and a handful of Republicans who could not give a fuck, starting with Tom Massie, forced Trump to retreat.

Retreat. RETREAT!! Bill Kristol wrote.

And they’re laughing at the position it puts Mike Johnson in. (Well, not CNN. CNN pretends Johnson had a “strategy” on Epstein.)

President Trump’s stunning reversal on the “Epstein files” discharge petition has undercut months of work by Speaker Mike Johnson.

Why it matters: The Epstein issue has plagued the House since the summer. Now the speaker is about to suffer a clear defeat over Reps. Thomas Massie’s (R-Ky.) and Ro Khanna’s (D-Calif.) discharge petition.

Johnson cut the week short before the August recess after Democrats forced multiple votes on releasing the files. He then kept the House out of session for nearly two months — a move that, intentionally or not, delayed the discharge petition from reaching the floor.

“What I am opposed to is the reckless disregard that was used in drafting this discharge petition,” Johnson told reporters on Wednesday.

But on Sunday, Trump reversed months of calls to block an Epstein vote, saying Republicans should vote for it. On Monday, he said he’d sign the bill.

Tuesday’s vote is expected to pick up significant GOP support, including from Rep. Lisa McClain (R-Mich.), the highest-ranking woman in the House GOP leadership.

Zoom in: Johnson’s posture about the legislation hasn’t changed, a source familiar with his thinking told Axios.

But after months of railing against it, he opened the door Monday to supporting it.

The focus here is on Mike Johnson. Not the way Democrats chased Johnson out of DC a week early this summer, literally stealing him of the power of his gavel, then forced his members to stay home (and Adelita Grijalva to wait to be serve her constituents) for two months while Americans suffered the costs of the shutdown.

It doesn’t consider that by undercutting Johnson, Trump risks destroying the way he set Johnson up as his functionary. Trump and Johnson are both treated as the agents here.

Both NYT and CNN view this as a rare retreat from Trump.

For the first 10 months of his presidency, Mr. Trump has steered the narrative and bullied Congress into doing whatever he wanted with almost no pushback. But as Republicans gear up for midterm elections and some begin to plot a future after Mr. Trump, the Epstein episode is a rare instance in which he has lost control.

For months, House Republicans had dreaded the prospect of a vote on releasing the Epstein files. Such a moment would leave them torn between pressure from a fervent base demanding that they support the release of the files and a vengeful president who was demanding the opposite.

Mr. Trump’s about-face was a bow to the inevitable that came after it had become clear that many, if not most, Republicans were planning to support the measure, wary of appearing to aid in a coverup for a sex offender.

Kyle Cheney is one of the only people noting that this is not coming in isolation, citing these six (he says seven) signs that Trump is losing his grip.

Republicans refuse to back down on Epstein vote
Indiana GOP lawmakers don’t bite on redistricting
Warning signs appear for tariffs at the Supreme Court
No luck on the filibuster or the blue slip, either
Trump gets a one-two punch after pardoning 2020 allies
MAGA rebukes Trump on 50-year mortgages, H1B visas

He included seventh on social media: 7) Voters overwhelmingly rejects Rs in off-year elections.

I’d add to this list: Trump’s coalition is also unraveling over whether they should be enthusiastic champions or opponents to Nazism, both a squalid fight played out in real life, and potentially useful given revelations that one of his House Nazis, Paul Ingrassia, also interceded to help accused sex trafficker Andrew Tate.

If we use it right, we can use the anti-Nazi backlash as a way to offer an exit ramp to Republicans fleeing the ship, one JD Vance, at least, intends to go down with.

But the Epstein retreat comes amid another important retreat, one only partly captured by Cheney’s list. Last week, the reality that American can’t grow (much) bananas or coffee caught up to Trump and after he single-handedly spiked the price of key breakfast goods, Trump started to retreat — like the Epstein vote — before his partners-in-crime, this time the Supreme Court, abandoned him.

Trump is trying to do with tariffs what he is also trying to do with Epstein, squeeze some victory out of his defeat, float rebates as a way to avoid explaining to voters that Trump single-handedly made Barbie unaffordable for Christmas and, depending on how SCOTUS rules, the possibility he created an enormous hole in his budget and the onerous process of paying back importers.

Both of these may be (attempted) tactical retreats. Pam Bondi may attempt to bottle up the Epstein files at DOJ. Some of Trump’s stupid tariffs were lawfully enacted, and also stupid.

But it’s important to note that these retreats are happening in parallel, not least because tariffs are one area where Republicans have always agreed with Democrats, even while hoping someone else would make the problem go away.

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Stephen Miller Prioritized This Guy’s Shame Over Children Being Raped

November 17, 2025/15 Comments/in emptywheel, Immigration, Weaponized DOJ /by emptywheel

There have been a slew of articles in recent days about how DHS and DOJ are neglecting important concerns to instead chase Stephen Miller’s racist fever dreams.

NYT has a long piece summarizing the stories we’ve heard piecemeal of 60 DOJ lawyers who’ve left. MS-NOW reveals that an FBI SWAT team is babysitting Kash’s girlfriend.

And NYT has a story that incorporates FOIAed data with interviews about what DHS investigators aren’t doing because they are instead chasing migrants.

Homeland security agents investigating sexual crimes against children, for instance, have been redeployed to the immigrant crackdown for weeks at a time, hampering their pursuit of child predators.

A national security probe into the black market for Iranian oil sold to finance terrorism has been slowed down for months because of the shift to immigration work, allowing tanker ships and money to disappear.

And federal efforts to combat human smuggling and sex trafficking have languished with investigators reassigned to help staff deportation efforts.

[snip]

Homeland security investigators worked approximately 33 percent fewer hours on child exploitation cases from February through April compared to their average in prior years, according to a Times analysis of data obtained through the F.O.I.A. lawsuit.

“It’s heartbreaking,” said Hany Farid, a computer scientist who helped create software used by law enforcement and technology companies to detect child sexual abuse material. “You can’t say you care about kids when you’re diverting actual resources that are protecting children.”

It includes a story of a child who got lost as agents were pulled off to chase immigrants.

Earlier this year, special agents at Homeland Security Investigations found online videos showing violent sexual abuse of an unidentified young child.

Trained to hunt down pedophiles who use the internet to distribute illegal imagery, the H.S.I. agents spent weeks analyzing the footage to try to identify the child and infiltrate the online networks that had shared and may have directed the abuse, according to a person with knowledge of the investigation.

But the agents working the case have since been asked to go out in the field and help arrest undocumented immigrants. The reassignment has hindered progress toward identifying and rescuing the child, said this person, who spoke on condition of anonymity to discuss a sensitive investigation. The person said that the agents, no longer able to spend as much time undercover online, had lost contact with a key source they had cultivated over years in the online world of abusers.

But the story that really brings the misplaced priority home for me is this criminal complaint, noted in the latest CourtWatch, charging an American citizen with assault “involving physical contact” for spitting at — and filming — a Supervisory Border Patrol Agent in the parking lot of an Anaheim Home Depot on November 6.

When I first saw the picture accusing Robert Cortez of being the one guy out of 15 protesting Border Patrol in that parking lot of being the guy who spat at “JA” (as the alleged spitee is called), somehow managing to first “hit his right arm and [then] splash onto his face,” on what appears to be his left side, I couldn’t see the spit in the picture in the affidavit at all.

I see it there, now, on the strap of his helmet.

It’s the affiant’s day job — hunting child exploitation — that gets me.

3. I have been employed as a Special Agent (“SA”) of the U.S. Department of Homeland Security, Homeland Security Investigations (“HSI”) since 2023, and I am currently assigned to the Child Exploitation Investigations Group in Orange County. Prior to my employment as a Special Agent, I was employed as a Border Patrol Agent with USBP from 2018-2021. My responsibilities as a Special Agent include investigating crimes involving the sexual exploitation of minors, including, but not limited to, offenses involving travel in foreign commerce to engage in sexually explicit conduct with minors, and offenses involving the production, possession, distribution, and transportation of child pornography.

This guy’s day job is hunting down assholes who rape children.

Instead of doing that, he is avenging poor JS, who might feel shame for being filmed — and spat on — while snatching workers from a Home Depot parking lot.

And now DOJ is going to spend time and money to try to cage this guy for trying to shame those snatching his neighbors.

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Trailer Park Slum Lord: The Generational Corruption of Bill Pulte

November 14, 2025/30 Comments/in Economics, emptywheel, Financial Fraud, Weaponized DOJ /by emptywheel

The thing about Bill Pulte’s corruption is that a fair number of Republicans seem have it in for him, too (as laid out in this Politico piece in September).

That may help to explain the 3,000 word profile airing the family’s dirty laundry while detailing that Pulte’s closest ties to his family’s developing empire are to some decrepit trailer parks.

He did not issue press releases about the five mobile home parks his companies acquired in Florida for about $3 million in the two years before he was nominated to become the F.H.F.A. director in January.

Recent visits to two of the mobile home parks revealed a broken fence and overflowing trash bins. The dozen or so trailers at the parks were aging. Some had windows covered with faded American flags and cardboard. Duct tape patched torn screens.

Documents show Mr. Pulte was the signatory on a $2 million mortgage taken out on three of the properties in August 2024. The woman listed as an agent on some of the mobile home parks also works in his charitable organization. In January 2024, he told an interviewer on an investing podcast that the “Pulte Family” was buying mobile home parks and planning to revamp them amid a market of rising rents.

In the same interview, Mr. Pulte said he planned to make them into “nice communities.”

But his companies have been slow to make repairs, said residents of three of the parks, who spoke on the condition of anonymity because they feared retribution.

A resident of one property, in Lake Worth in Palm Beach County, said he had gone months without a working stove, despite asking the management company to fix it. Another resident said he had spent $300 to repair his broken air-conditioning unit. Some trailer park leases warn tenants that if they miss rent payments, which are due weekly, “they will be removed for trespassing by the local sheriff!!”

At some properties, rents have been rising. A resident at a mobile home park in Cottondale in the Florida panhandle said in a filing in Jackson County Court this summer that his monthly rent had increased to $950 from $550 after Mr. Pulte’s company took over. At a park in Ruskin, south of Tampa, rents recently rose $100 a month — about 16 percent — to pay for a new dumpster, several residents said.

None of the mobile home properties carry the Pulte family’s name.

One of the quickest ways to taint someone in Trump’s eyes is to make him look squalid.

Meanwhile — and purely by happenstance — the Epstein dump James Comer released to distract from Trump’s knowledge of Epstein’s sex trafficking included a document that seems to be Epstein’s side of the split with Trump.

In a February 1, 2019 email first sent to himself (possibly BCCed to someone else?), and then sent to Michael Wolff, Epstein transitions directly from a claim in one of the letters from which Comer was trying to distract — that Trump came to his house a lot while someone Epstein trafficked was there, purportedly Virginia Giuffre — to his description over the fight about the property that Trump would one day launder into cash from Dmitry Rybolovlev, the fight that Trump had also publicly used to explain the split. Much of Epstein’s focus was on his suspicions that Trump didn’t have the money to buy the mansion in the first place and probably didn’t pay taxes on it.

But amid the description, Epstein describes that “his friend pulty the developer” was part of Trump’s bid. If that is Pulte, it would be Pulte’s father who, like Trump’s dad, fronted him in the real estate business. [Update, corrected per this report. h/t DrAwkward]

In Epstein’s mind, then, there’s a tie between Trump’s knowledge he “stole” his spa girl and the fight over the Palm Beach mansion, a fight in which “pulty the developer” played some part.

But all that is in the past.

Let’s move onto concerns about the present and future.

AP reports that an aide to Pulte pulled information on single home mortgage rates and shared it with a competitor. When Fannie executives pointed out this was collusion, they were fired (another part of the explanation for Pulte’s purge last month).

A confidant of Bill Pulte, the Trump administration’s top housing regulator, provided confidential mortgage pricing data from Fannie Mae to a principal competitor, alarming senior officials of the government-backed lending giant who warned it could expose the company to claims that it was colluding with a rival to fix mortgage rates.

Emails reviewed by The Associated Press show that Fannie Mae executives were unnerved about what one called the “very problematic” disclosure of data by Lauren Smith, the company’s head of marketing, who was acting on Pulte’s behalf.

“Lauren, the information that was provided to Freddie Mac in this email is a problem,” Malloy Evans, senior vice president of Fannie Mae’s single-family mortgage division, wrote in an Oct. 11 email. “That is confidential, competitive information.”

He also copied Fannie Mae’s CEO, Priscilla Almodovar, on the email, which bore the subject line: “As Per Director Pulte’s Ask.” Evans asked Fannie Mae’s top attorney “to weigh in on what, if any, steps we need to take legally to protect ourselves now.”

While Smith still holds her position, the senior Fannie Mae officials who called her conduct into question were all forced out of their jobs late last month, along with internal ethics watchdogs who were investigating Pulte and his allies.

This effort seems to stem from Pulte’s response to Trump’s orders to push builders to build more single family homes.

Pulte’s power over the mortgage lending industry is unusual. Not long after his Senate confirmation, he appointed himself chairman of both Fannie Mae and Freddie Mac, which hold trillions of dollars in assets. The companies serve as a crucial backstop for the home lending industry by buying up mortgages from individual lenders, which are packaged together and sold to investors.

The three competing roles present the potential for a conflict of interest that is detailed in emails reviewed by AP. Like many matters of public policy in Trump’s Washington, it appears to have begun with a social media post.

In October, Trump criticized the homebuilding industry, which he likened to the oil-market-dominating cartel OPEC.

“They’re sitting on 2 million empty lots, A RECORD,” the president posted to his social media platform, Truth Social. “I’m asking Fannie Mae and Freddie Mac to get Big Homebuilders going.”

“On it,” Pulte posted in response on X.

That is, Pulte may have abused his overlapping roles running the country’s housing finance in an attempt to solve the fact that he’s not otherwise good at his job.

And so he tried to cheat.

And when caught cheating, he fired the people who caught him.

The fact that Pulte keeps getting caught botching his day job — the one that, when he fails, could tank the entire US if not global economy — has not distracted him from his real love: framing Trump’s enemies.

This time, Eric Swalwell was the target.

A top housing official in President Donald Trump’s administration has referred California Democratic Rep. Eric Swalwell to the Justice Department for a potential federal criminal probe, based on allegations of mortgage and tax fraud related to a Washington, D.C., home, according to a person familiar with the referral.

He is the fourth Democratic official to face mortgage fraud allegations in recent months.

Bill Pulte, the director of the Federal Housing Finance Agency, alleged in a letter sent to Attorney General Pam Bondi on Wednesday that Swalwell may have made false or misleading statements in loan documents.

The matter has also been referred to the agency’s acting inspector general, this person said.

“As the most vocal critic of Donald Trump over the last decade and as the only person who still has a surviving lawsuit against him, the only thing I am surprised about is that it took him this long to come after me,” Swalwell said in a statement to NBC News.

Perhaps Pulte has a whole portfolio of flimsy claims about Trump’s enemies in a folder somewhere, to deliver up to Trump every time someone, even some Republican, raises real concerns about his basic competence.

Thus far, it seems to have insulated him from any real accountability.

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Gabriel Diaz’ 14 Exhibits

November 11, 2025/26 Comments/in emptywheel, Weaponized DOJ /by emptywheel

As I noted here, in a telephone hearing yesterday, Magistrate Judge William Fitzpatrick ordered the government to provide him with the grand jury transcripts in the Jim Comey case, which he will review after reading an ex parte filing from Comey’s team laying out the unlawful evidence they suspect got presented to the grand jury.

Loaner AUSA Gabriel Diaz may have helped them write that memo by confirming there were 14 exhibits presented to the grand jury.

His claim — that there were 14 exhibits — may not be entirely true.

I say that because that number — 14 — matches the number of exhibits included in last week’s response to Comey’s vindictive prosecution claim (the reply to which Comey submitted yesterday, which I’ll return to). The exhibits posted to docket last week, which all include exhibit tags, consist of the following:

Exhibit 1: DOJ IG Investigation into Comey’s Memos
Exhibit 2: Comey letter reopening investigation
Exhibit 3: January 2, 2015: Letter stating that Richman would not comment on matters he “work[s] on for the Bureau”[1st Columbia email]
Exhibit 4: October 29, 2016: Text saying, “The country can’t seem to handle your finding stuff” [2nd Columbia email]
Exhibit 5: October 30, 2016: Richman offering to write an op-ed for NYT [2nd Columbia email]
Exhibit 6: November 1-2, 2016: Comey suggests perhaps Richman can make Mike Schmidt smarter [2nd Columbia email]
Exhibit 7: November 2, 2016: Richman noting story about Hillary [2nd Columbia email]
Exhibit 8: April 23, 2017: Email to Richman thanking him [Columbia email]
Exhibit 9: February 11, 2017: Richman recruiting Chuck Rosenberg for article [1st Columbia email]
Exhibit 10: May 2017: Texts between Schmidt and Richman [Dan Richman’s phone]
Exhibit 11: DOJ IG Investigation into Comey’s Memos
Exhibit 12: July, 27, 2025: 18 USC 2071 Opening memo
Exhibit 13: September 26, 2016: Notes on Russian investigation briefing
Exhibit 14: Transcript of Lindsey Graham question about the CIOL

This order would suggest they laid out the evidence that Comey lied, focusing heavily on the 2016 exchange (the only one from when Richman was at the FBI), and presenting Comey’s April 23, 2017 thank you email to Richman ahead of Richman’s February 11, 2017 recruitment of Chuck Rosenberg, possibly creating the misimpression that Comey asked for Richman to weigh in on what became the April 2017 story.

Then they presented the Comey memo exchange (Exhibits 10 and 11), and the “Clinton Plan” (Exhibits 12-14). As presented, they did not present the “Clinton plan” referral itself to the grand jury (which might have made it even more apparent that Lindsey was not asking about what Comey’s notes laid out).

There must be at least one more exhibit as presented for the indictment the grand jury approved. As laid out here, the grand jury was not shown how Comey responded to Ted Cruz’ question (to say nothing of Chuck Grassley’s question on which Cruz’ question was based). That is, as laid out here, prosecutors did not include the exhibit that laid out the one lie actually charged.

There must be a video or something — though I find it interesting that they didn’t provide a transcript of Cruz’ question (if they didn’t), since he garbled it about ten different ways.

There are three other questions this exhibit list raises for me.

First, one concern Comey’s attorneys have is the treatment of the materials obtained with a second warrant for Dan Richman’s Columbia emails — presumably the source of Exhibits 4-9.

What’s interesting is the Bates stamps for those are inconsistent. The earlier set are marked with a Richman Bates stamp.

The two later ones, including the one from the same Jim Comey ReinholdNiebuhr7 alias Gmail, have COLUM Bates stamps.

That suggests those two sets of communications were treated differently. Possibly, the earlier one was part of Richman’s privilege log.

The Bates stamps on the texts between Richman and Mike Schmidt also raise questions, because there’s no source of any kind noted (or if there is, it is redacted), just a series starting with 4801.

Given some of the other details we’ve learned: that all the Feebs involved in this report directly to Kash Patel, that the agent who read the attorney-client privileged text was reading the entire Cellebrite extraction of Richman’s phone — that is, without privileged texts removed — it raises real questions about whether some other team provided them, a team with its own (obscured) Bates stamp.

Worse still, the one of the two agents who read the privileged text attested that he only handed Miles Starr two pages of texts, all dated May 11.

SA Warren provided the indictment preparation team a two-page document containing limited text message content only from May 11, 2017, predating the reference to potential future legal representation.

But the exhibit is eight pages long!

Having been told there was privileged communication there and shielded from it, someone went back to those texts to get more of them, to present them to the grand jury. And that same someone led the Loaner AUSAs to believe that sharing the Comey memos after consulting with attorneys was a crime.

Effectively, SA Warren has reported a crime committed by his superiors, the willful violation of Jim Comey’s privilege.

Which is undoubtedly why James Hayes is so intent on letting the FBI lead a privilege review.

Finally, one more thing. Remember how weird the no-billed indictment is, which I laid out here?

The indictment the grand jury approved charged Comey with lying to Ted Cruz (as Diaz would have it, without being shown what that lie is), and obstructing a Congressional proceeding, “by making false and misleading statements before that committee.”

The exhibit list makes clear that Lindsey the Insurance Lawyer did shoehorn the no-billed charge into the obstruction charge, presumably treating questions about the Comey memos and “Clinton plan” — the only things in the indictment that were material to the scope of the hearing — as “misleading” rather than “false” statements. Last week, Pat Fitzgerald had said they were going to raise concerns about that this week, but they may be waiting to get that grand jury transcript.

Now go back and look at how that obstruction charges looks in the no-billed (top) and approved (bottom) indictment.

Update: As Amicus12 points out below, sometime within a day or so of the indictment, this error got fixed. Here’s what the fixed document looks like:

It is increasingly clear that Lindsey the Insurance Lawyer literally replaced what would have been Count Three of the no-billed indictment with Count Two of the approved indictment. That explains why that page has:

Staple and scan marks matching the real indictment
The numbering from the second indictment (these paragraphs should be numbered 7 and 8 in the no-billed indictment)
Both the signature of the foreperson (note the part of a signature that crosses into the “U” of the True Bill line) and Lindsey herself on that page

She simply swapped the page.

There’s good reason to ask whether she wasn’t just being dumb and inexperienced (which is what it looked like in the 7-minute hearing with the judge), but was also being deceitful.

For example, it’s possible that the original indictment charged Comey with obstructing the Senate’s investigation only by making false statements, but in a bid to get the material things in there pertinent to the larger investigation, the “Clinton plan” and the Comey memos, Lindsey the Insurance Lawyer added the word “misleading” to lower the bar to get a vote from the grand jurors.

It’s unclear whether Fitzpatrick will or can review some of these issues. He’s scrutinizing the indictment for unlawful and privileged exhibits. That also might explain why Diaz tried hard to prevent Comey from providing a list of things to look for.

The unlawful exhibits are bad enough. But there seems to be worse still.

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Spill! The EDVA Case against Jim Comey Could Well Harm the Even More Corrupt SDFL Case

November 8, 2025/13 Comments/in emptywheel, Weaponized DOJ /by emptywheel

It looks increasingly likely that because someone snuck a peek into Jim Comey’s privileged communications — or, because Tyler Lemons cares enough about his bar license that he disclosed that someone snuck a peek into Comey’s privileged communications — Comey may get a ruling that the government violated his Fourth Amendment rights, throwing out some of the material used in the government’s filing laying out the theory of their case.

The exhibits to that filing which were seized from Dan Richman include a bunch of communications sent from two different Columbia University emails, as well as texts sent on Richman’s phone.

January 2, 2015: Letter stating that Richman would not comment on matters he “work[s] on for the Bureau” [1st Columbia email]
October 29, 2016: Text saying, “The country can’t seem to handle your finding stuff” [2nd Columbia email]
October 30, 2016: Richman offering to write an op-ed for NYT [2nd Columbia email]
November 1-2, 2016: Comey suggests perhaps Richman can make Mike Schmidt smarter [2nd Columbia email]
November 2, 2016: Richman noting story about Hillary [2nd Columbia email]
February 11, 2017: Richman recruiting Chuck Rosenberg for article [1st Columbia email]
April 23, 2017: Email to Richman thanking him [Columbia email]
May 2017: Texts between Schmidt and Richman [Dan Richman’s phone]

As Rebekah Donaleski described the warrants in Wednesday’s hearing, the Columbia emails likely came from a warrant served on the university in October 2019, whereas the texts should have only been available via the fourth warrant on Richman’s phone, but as I’ll show, may have instead come from unlawful searches from the hard drive seized with the first warrant in August 2019.

August 29, 2019: FBI seizes Richman’s hard drive. The government does a privilege review of that, not Richman.
October 2019: FBI obtains emails from Columbia. Richman withheld privileged or sensitive (from students), but conducted no responsiveness review.
January 2020: FBI obtains Richman’s iCloud. His attorney did a privilege review. The warrant specifically said it could not seize privileged material.
June 4, 2020: FBI gets warrants to access iPhone and iCloud back-ups on the original hard drive.

The arguably legal emails don’t prove DOJ’s case

Aside from the fact that the FBI accessed them without a warrant tailored to the current investigation, the two bolded emails were clearly responsive to the investigation into whether Richman leaked the SVR materials in advance of the April 22, 2017 story about them. But as I noted here, they don’t help the government prove that Comey lied to Ted Cruz about authorizing Richman, while he was at FBI, to be an anonymous source for a story about the Hillary investigation because:

There’s no evidence of Comey’s involvement in the story in advance
The emails unquestionably post-date Richman’s departure from FBI (Anna Bower expanded on the work I did to show that Richman was arguably never formally “at FBI” in this period)
Richman was a named source in the story

The January 2, 2015 email might be legal, but who cares? It doesn’t help the government’s case at all (and most likely was used to mislead grand jurors about the time frame of Richman’s relationship with the FBI).

The emails that come closest to proving the government’s case may be out of scope

It’s less clear whether the emails from fall 2016 — the ones that best match the theory of the case — should have been accessible to investigators for the investigation into whether Comey lied to Ted Cruz. That’s because — at least per a November 22, 2019 interview — Richman didn’t learn about the SVR emails until January 2017.

According to Richman, he and Comey had a private conversation in Comey’s office in January 2017. The conversation pertained to Comey’s decision to make a public statement on the Midyear Exam investigation. Comey told Richman the tarmac meeting between Lynch and Clinton was not the only reason which played into Comey’s statement on the Midyear Exam investigation. According to Richman, Comey told Richman of Lynch’s characterization of the investigation as a “matter” and not that of an investigation. Richman recalled Comey told him there was some weird classified material related to Lynch which came to the FBI’s attention. Comey did not fully explain the details of the information. Comey told Richman about the Classified Information, including the source of the information. Richman understood the information could be used to suggest Lynch might not be impartial with regards of the conclusion of the Midyear Exam investigation. Richman understood the information about Lynch was highly classified and it should be protected. Richman was an SGE at the time of the meeting.

Nothing in the hearing on Wednesday describes the date scope of the warrants. But immediately after she described this warrant, Doneleski raised doubts about whether the Columbia emails had been reviewed for responsiveness, with non-responsive emails sealed.

As Your Honor is aware, each of these warrants require the government to conduct a responsiveness review and then seal and not review the nonresponsive set. I don’t know if that happened here, and Mr. Lemons didn’t describe whether the government created a responsive set.

[snip]

MS. DONALESKI: Judge, the government provided us with affidavits describing what happened; and from the affidavits, it sounds like the agents accessed the filtered returns, meaning both the nonresponsive and responsive set, because Mr. Richman’s counsel and Columbia did not conduct a responsiveness review. If that is indeed what they accessed, for the reasons we set forward in our papers, that clearly violates the Fourth Amendment because the government cannot then go back into a nonresponsive set that has not been identified responsive and continue searching pursuant to stale warrants for separate offenses.

If these emails were out of scope according to the 2019 warrants, then they should be sealed, inaccessible to anyone.

The privileged material was prohibited under the previous warrants

Tyler Lemons tried to excuse an agent for having read privileged communications by explaining that in those communications, Dan Richman used the name Michael Garcia.

MR. LEMONS: I don’t know the status — I don’t know if the team knew the status of their relationship. The other complicating factor, Your Honor — and we have two affidavits here that we’ve provided to the defense, and we have copies for the Court as well if you’d like to review it — one of the issues was the conversation that was being reviewed, the telephone name associated with one of the participants was Michael Garcia. And so it wasn’t as if the agent went in reviewing a conversation between James — the defendant and Daniel Richman; it was a conversation between the defendant and Michael Garcia. And so at a certain point, the agent began to understand the topics and the kind of factual — the history of the case; came to the conclusion that Michael Garcia looks like it’s actually Daniel Richman under a pseudonym or whatever it is. And at that point, it kind of brought into focus what, potentially, the conversations that the agent was looking at could be pertaining to.

That’s the name Richman used in texts exchanged with Mike Schmidt about the memo Comey had documenting Trump asking to let the Mike Flynn case go and because of timing — Richman only formally represented Comey after he was fired on May 9 — it’s likely the privileged stuff is the counterpart to this discussion.

It’s unclear whether these texts would have been in scope for the Arctic Haze investigation. In addition to the leak crime, 18 USC 793, the government also investigated using government materials, 18 USC 641, converting government records for personal use. In an interrupted comment, Lemons claimed it was responsive, which it might have been to that second crime. Donaleski wondered how the government filed them if they paused all review.

The government filed, on Monday, text message chats that came from the Arctic Haze warrants.

The question is how privileged texts between Richman and Comey were available in the first place. Lemons blamed the review Richman did.

MR. LEMONS: It would appear that he was — I don’t know for sure, Your Honor, but my assumption and based on him raising his hand on this, is that he was reviewing material that had not been filtered by Daniel Richman or his attorneys.

But given Donaleski’s mention of that original warrant, the one for which Richman did not do a filter, I wonder if DOJ got unfiltered content by accessing the unfiltered backup (which is effectively how prosecutors got the most damning texts used against Hunter Biden at his trial).

However investigators got to the privileged texts, it doesn’t fix the problem because they still accessed stuff from Comey before he had had an ability to make privilege determinations. And Donaleski argued anything privilege was not permitted to be seized, so anything reviewed now would be unlawful.

the warrants themselves specify that the government could only seize non-privileged materials

[snip]

MS. DONALESKI: And so to the extent the government now wants to look at materials that Mr. Richman’s counsel identified as privileged, those were never within the scope of the warrants, so they were never properly seized by the government, so no one can look at those materials. They weren’t seized five years ago. The government’s filter team didn’t challenge those designations, so no one can look at them. There’s no case law that says the government can go back five years later under stale warrants for separate offenses to look at things that were not seized five years ago.

Here’s where things get interesting, though.

The Comey memos are unresponsive to this investigation

Comey’s team has until the 19th to submit a Fourth Amendment challenge to this material. I imagine their argument may include the privilege problem and the responsiveness problem.

But then there’s the issue of proving that these texts are relevant to this investigation.

The Comey memos are undoubtedly responsive to the conspiracy conspiracy Trump is attempting to put together in Florida. This entire privilege effort seems to be an effort to clean up the material for the other investigation, not this one (which may be why James Hayes is on all the most important filings in this fight). The Florida case seems focused on claiming that by releasing the memo with the intent of precipitating a Special Counsel investigation, Comey unfairly harmed Trump.

But to argue these texts are responsive to this investigation, prosecutors would have to claim that they’re still relevant even after Comey admitted he had shared the memo via Richman, way back in 2017. Republicans have known that detail for years. His public admission of that fact is central to their claim that Trump had legitimate cause to worry about Comey leaking.

But to make that claim, they have to rely on the same false claim prosecutors (one of the filings that metadata attributes to James Hayes) made last month: that the act of sharing a memo that Comey understood to be unclassified was a criminal leak. (Starting in 2020, the government began to have problems charging 18 USC 641 in this context and precedent may rule it out any longer.)

That is, if prosecutors have to get a warrant for this material, it’s not clear they could get one for the EDVA case. If they tried for the Florida case, it could well blow up that case.

This whole effort started when, in the wake of the taint, prosecutors decided to use this case to quickly force though access to the privileged texts they saw. But thus far, the effort may make it harder to access material for both this case and that one.

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Tyler Lemons Caught Jack Eckenrode Committing a Capstone Crime

November 7, 2025/15 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Back in July, in the wake of Trump’s struggles to distract from his own Epstein cover-up and as if in response to Tulsi Gabbard’s wild rants about the Intelligence Community Assessment, the FBI Director posted this tweet, RTing an inflammatory tweet from a propagandist who has been central to Kash’s disinformation about the Russian investigation.

Buried in a back room at the FBI, Kash claimed, was what John Solomon called “the smoking gun evidence … [i]f it is authenticated.”

Days later, Kash referenced these files again, explicitly tying his campaign to supplant the Steele dossier for the actual Russian investigation with his role, as FBI Director, now focusing on “uncovered burn bags/room filled with hidden Russia Gate files, including the Durham annex.”

It took just a matter of days for me and Charlie Savage to figure out that four years earlier, John Durham had not just not authenticated John Solomon’s “smoking gun,” but he had in fact concluded that the very email Solomon called a smoking gun was instead, “a composite of several emails.”

That is — a fabrication.

After the release of the Durham annex revealed that Kash — and John Durham and John Durham’s lead investigator Jack Eckenrode, along with John Ratcliffe — had been chasing Russian disinformation, Kash got even more desperate, clinging to Sean Davis propaganda in an attempt to rebut a plain reading of the Durham annex.

The FBI Director just endorsed the ignorant ravings of a long-discredited propagandist, Sean Davis, attempting to debunk the NYT’s factual reporting that the letters on which the entire conspiracy the frothy right has been chasing for years “were probably manufactured.”

Kash needs Davis to be right, because if he’s not, it exposes Kash as someone too stupid to understand he has been chasing Russian disinformation for years. Kash needs Davis to be right, because Kash just declassified this annex thinking it would help his boss distract from the Epstein scandal that him himself stoked, when in fact it shows that Russian spies have been laughing their ass off at everyone involved for nine years (which I’ll come back to).

The truth is, Kash has been chasing documents as self-evidently problematic as the Steele dossier all that time.

He has proven an easy mark.

That’s what we saw in real time. We also saw in the classified annex both that Durham, along with his chief investigator, Jack Eckenrode, tried to hide the evidence that they had been chasing Russian disinformation for years — indeed, continued to chase Russian disinformation for two years after obtaining confirmation they were doing that. Then Tulsi Gabbard and Chuck Grassley tried to hide that Durham had tried to hide that.

It became clear that John Durham and his lead investigator Jack Eckenrode had committed the very crime that Durham claimed he was investigating when he chased Russian disinformation for four years, which he described this way:

(i) knew the Clinton campaign intended to falsely accuse its opponent with specific information or allegations, (ii) intentionally disregarded a particular civil right of a particular person (such as the right to be free of unreasonable searches or seizures), and (iii) then intentionally aided that effort by taking investigative steps based on those allegations while knowing that they were false.

From the moment John Durham and his lead investigator Jack Eckenrode persisted in falsely accusing Hillary of framing Donald Trump and used that false accusation to take investigative steps like obtaining warrants, they were (in their model) conspiring against rights under 18 USC 241.

18 USC 241 happens to be the crime that the frothers claim they are pursuing against Comey and everyone else right now.

About a month after Kash first rejoiced about the opportunity to commit the crime Durham had chased, we learned that Jack Eckenrode — shockingly!! — had been invited back to commit the same crime some more. NYT since updated on how, little more than a month after Todd Gilbert was confirmed as US Attorney in WDVA and asked to oversee this investigation, he left under pressure.

That’s background to these two exhibits that prosecutors included in the government’s response to Comey’s vindictive prosecution motion.

Start with the opening memo for an investigation into whether someone deliberately put a bunch of documents in burn bags but … didn’t burn them, the precipitating event that Kash boasted about on July 31. In fact, those burn bags were discovered in April, and they were discovered in FBI Headquarters, not WDVA, where Kash and Bondi stashed the investigation. And the likely explanation for the documents is that senior FBI people were clearing out their offices to make way for … Kash Patel.

On or about April 15, 2025, the Director’s Advisory Team was informed of the unusual discovery of highly classified and sensitive documents found inside five “burn bags” located in Room 9582, a certified Sensitive Compartmented Information Facility (SCIF) at the FBI Headquarters building in Washington, DC.

A cursory inventory of the 9582 SCIF revealed the existence of classified documents, including documents believed to be official records, inside “burn bags” which appeared to have been placed in the SCIF around the timeframe of the 2025 presidential inauguration – Friday, January 17, 2025 through Wednesday, January 22, 2025. A brief review of the contents of the “burn bags” revealed that some of the documents left behind may have come from a collection of records held by certain unidentified senior government officials at FBI Headquarters.

What really set Kash off, it seems clear, is that — seemingly amid a bunch of files relating to the Special Counsel investigations that happened during the Biden Administration — was the document at the heart of Durham’s criminal investigation building on Russian disinformation, a document potentially referring to the fabrications Russian spies made.

Among the records found were many related to the FBI’s Mar-a-Lago search, the January 06 capitol breach, the Crossfire Hurricane investigation, as well as a copy of the Classified Appendix to the John Durham Special Counsel investigation. Moreover, an additional record discovered as part of this management review process was an original referral by the Central Intelligence Agency (CIA) to former FBI Director James Comey, known as a Counterintelligence Operational Lead (CIOL). This CIOL, believed to have been missing for several years, was dated September 07, 2016 and contained certain intelligence related to the 2016 U.S. presidential election campaign. The CIOL was found in a storage closet adjacent to the Director’s office and was subsequently transported to the 9582 SCIF. Former Director Comey previously testified before the Senate Judiciary Committee that he was unfamiliar with this CIOL as well as its related intelligence. [my emphasis]

Now, there are already several flashing lights here. 🚨🚨🚨 [Sorry Rayne!]

You cannot have Jack Eckenrode anywhere near the criminal investigation into a document he chased for years. He has more incentive to hide the Durham annex showing that he committed the very crime he was investigating than Comey (or anyone close to him) has to hide the CIOL. In any case, this still seems to fall well short of proof that the FBI actually received it. This opening memo describes that the people who are supposed to catalog such things did not, and if they found it after the fact, it would raise real questions if Eckenrode planted it.

Worse still, the opening memo for this investigation misrepresents Comey’s testimony from the hearing.

Lindsey: Do you recall getting an inquiry from the CI, excuse me, the intelligence community in September, 2016, about a concern that the Clinton campaign was going to create a scandal regarding Trump and Russia? Mr. Comey: I do not.

Senator Graham: You don’t remember getting a investigatory lead from the intelligence community, hang on a second … Let me find my document here.

Speaker 3: There it is.

Senator Graham: September the Seventh, 2016, the US intelligence officials forwarded an investigative referral to FBI Director James Comey and Assistant Director of Counterintelligence Peter Strzok regarding US presidential candidate Hillary Clinton’s approval of a plan concerning US presidential candidate Donald Trump and Russian hackers hampering US elections as a means of distracting the public from her use of a private email server. You don’t remember getting that or being talk, that doesn’t …

Mr. Comey: That doesn’t ring any bells with me.

[snip]

Senator Graham: Did you have a duty to look at any allegations regarding Clinton in Russia?

Mr. Comey: I don’t know what you mean. Senator Graham: Well, you say you had a duty to look at allegations about the Trump campaign being involved with the Russians. You’ve got a letter now from Radcliffe saying that there was a, they intercepted information about an effort in July where Hillary Clinton approved an effort to link Trump to Russia or the mob. Did you have an investigation look and see if whether that was true?

Mr. Comey: I can’t answer that. I’ve read Mr. Radcliffe’s letter, which frankly I have trouble understanding.

That’s true, in part, because Graham misrepresented what the CIOL was. As it explains, the memo only served to provide the kinds of information that the CIA was finding in SVR documents obtained from the Dutch. It was not a request for the FBI to conduct an investigation, but right wingers have treated it as such for years.

The redaction in the pertinent paragraph, which seems to be a reference to Guccifer 2.0, likely obscures the entire meaning of the paragraph, to say nothing of the redaction of the other paragraphs. More importantly, there was no discussion at the hearing of what Comey would have understood this to belong to: the larger set of SVR documents that the FBI had deemed objectively false much earlier in the year.

In other words, that reference in the opening document shows that this entire investigation was predicated on a false claim about Comey — it represents Eckenrode’s false belief about Comey, not the actual transcript (remember, Loaner AUSA Tyler Lemons hid this transcript as an exhibit in his response to Comey’s selective prosecution bid).

And the Jim Comey notes that Lemons insinuates undercut Comey’s claims about receiving the CIOL on September 7, 2016 only serve to underscore this point.

The discovery of the handwritten notes is relevant considering the defendant’s prior testimony on September 30, 2020. Of note, during that hearing, the defendant was questioned by Senator Graham of South Carolina and Senator Hawley of Missouri. See Gov. Ex. 14. The questions focused on whether the defendant remembered “being taught” of “U.S. presidential candidate Hillary Clinton’s approval of a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private email server.” See id. The defendant responded by stating that “it doesn’t ring any bells with me” and “I don’t know what that refers to” and “I don’t remember receiving anything that is described in that letter.” See id. at 1 and 5. Despite this testimony, the defendant’s handwritten notes dated September 26, 2016, read: “HRC plan to tie Trump.” See Gov. Ex. 13 (Defendant’s handwritten notes).

These notes are more consistent with the SVR files being disinformation, rather than the truth right wingers have adopted it as.

More importantly, there’s no reason for Comey to be briefed (possibly by John Brennan) on a topic on September 26 if he received information about it 19 days earlier.

That is, these notes appear to be Comey writing down the reference, understanding it to be part of an attack on Hillary, weeks after Republicans want to catch him receiving a memo.

The part about prosecutors and FBI agents reading these notes in the least sensical way possible is not a crime.

What is a crime, though, is using Russian disinformation you know to be Russian disinformation (and Comey appears to have believed was disinformation) to obtain a criminal indictment.

And it appears that Lindsey Halligan tried to do that — but got no-billed.

Further, according to the transcript from the hearing on Wednesday, Comey’s team read Tyler Lemons’ response to Comey’s vindictive prosecution claim the same way I did:

As for the 18 USC 1505 charge, prosecutors will need to prove that Comey told lies that were intentional that impeded that investigation. Because of the scope of the hearing (and therefore the investigation), they can’t argue the two Hillary stories are material. Comey was aware of the scope of the hearing and Hillary wasn’t part of it.

There’s no way they can argue that Comey should have admitted asking Richman to serve as an anonymous source for the May 2017 story impeded the Senate investigation, because he had admitted that years earlier!!

That leaves just the Lindsey Graham question, which was specifically about whether Comey remembered the CIA referral, dated September 7, that Kash Patel had recently released in redacted — and therefore likely hopelessly misleading — form. As the transcript Lemons buries in an exhibit makes clear, the question — the one the grand jury no-billed — was not whether Comey was briefed; it was whether he recalls getting the document itself (Lindsey misstates what this document even was).

On Wednesday, Pat Fitzgerald expressed serious concern that “the government is expanding its case, we believe, to include the conduct that was no true billed in Count One as part of its proof of Count Two.”

And on top of that, Your Honor, I think there’s another motion coming from us, in light of some disclosures that were made Monday, where we think that the government is expanding its case, we believe, to include the conduct that was no true billed in Count One as part of its proof of Count Two, which raises serious issues for us. So we’ll do everything we can, but to do all that while getting Mr. Comey access to materials…

As I’ve said, this is the founding document of their conspiracy theories.

On Wednesday, Lemons didn’t raise an objection when Magistrate Judge William Fitzpatrick first said he was going to order DOJ to turn over grand jury transcripts, suggesting Lemons may have no fear Miles Starr presented privileged information to the jury.

By the end of day yesterday, he did have an objection. Michael Nachmanoff has bumped the whole grand jury question back to Fitzpatrick, so I expect Patrick Fitz (sorry, bad joke!) will get to test this theory shortly.

But that — relying on a no-billed charge for the obstruction charge — is not the only problem with chasing the Clinton Plan disinformation that John Durham debunked.

The far graver problem is it means Miles Starr is a witness to, if not a co-conspirator to, Jack Eckenrode (and FBI Director Kash Patel) committing a crime, precisely the crime they’re chasing.

Four years ago, Jack Eckenrode concluded this stuff was a Russian fabrication, the very thing they claim about the Steele dossier.

And then, Jack Eckenrode got an indictment for it anyway.

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The IG Firing that May Matter: FHFA

November 5, 2025/9 Comments/in emptywheel /by emptywheel

Yesterday, Reuters reported that the Inspector General for FHFA, which oversees Fannie and Freddie, got fired by the White House yesterday.

The ouster of Joe Allen, FHFA’s acting inspector general, follows the agency’s director, Bill Pulte, becoming an outspoken voice in support of the Trump administration. Across the government, the Trump administration has so far fired or reassigned close to two dozen agency watchdogs, who police waste, fraud and abuse. It has also defunded the group that supervises those offices.

The report attracted little notice; Reuters even notes that this is just one among dozens of IG firings. But this firing may blow up sooner rather than later.

That’s because Allen was preparing to share information with EDVA prosecutors.

Lindsey Halligan, the interim U.S. attorney for the Eastern District of Virginia who was hand-picked for the job by Trump, subsequently indicted James after her predecessor declined to do so, citing a lack of evidence.

Allen received notice of his termination from the White House after he made efforts to provide key information to prosecutors in that office, according to four sources. The information he turned over was constitutionally required, two of them said, while a third described it as being potentially relevant in discovery.

His ouster also came about as he was preparing to send a letter to Congress notifying lawmakers that the FHFA was not cooperating with the inspector general’s office, three of the sources said. These individuals said the FHFA director would typically have been notified of such a letter. Reuters was unable to independently determine whether Pulte was informed.

By the end of the day, the Loaner AUSA in the Letitia James case had submitted a letter stating they would not comply with Judge Jamar Walker’s order, issued during the arraignment, that they turn over evidence on selective and vindictive prosecution.

A grand jury returned a two-count indictment against Defendant on October 9, 2025. Doc. 1. Defendant’s Initial Appearance and Arraignment occurred on October 24, 2025. Doc. 24. At that hearing, the Court ordered Defendant to file her motion to dismiss based on vindicative/selective prosecution by November 7, 2025. Hear’g Tr., 23:18-20. It also indicated its expectation “that the discovery associated with this potential first motion needs to be frontloaded . . . .” Id. at 23:14-16. Consistent with this Court’s instruction, the Government provided newspaper articles to Defendant’s counsel. Defendant’s counsel also indicated that he intends to request substantial discovery from the Government.

The Government provides notice of its intent not to provide vindictive/selective prosecution-related discovery prior to Defendant’s motion because the law does not “allow[ ] a defendant to have discovery on the government’s prosecutorial decisions [until] the defendant . . . overcome[s] a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct. The standard is a ‘rigorous’ one.” Wilson, 262 F.3d at 315 (quoting Armstrong, 517 U.S. at 468). Until Defendant meets her threshold requirements, the Court’s instruction to produce any vindictive/selective prosecution-related discovery is premature.

The letter specifically describes that Rule 16 discovery does not include internal government reports made by government agents in connection with the case — something that would be covered by any review that FHFA’s IG did of this and other Bill Pulte referrals.

FED. R. CRIM. P. 16(a)(2) underscores the limitation to “defense” as it “exempts from defense inspection ‘reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case.’”

The filing is not dissimilar from a letter prosecutors sent in the LaMonica McIver case, telling McIver’s attorneys they would not abide by Judge Jamel Semper’s August 26 order to meet and confer about selective and vindictive evidence.

The Government has reviewed your letter of September 3, 2025 detailing the specific discovery requests sought in conjunction with your client’s motion to dismiss based on selective prosecution and enforcement, and vindictive prosecution. As we discussed during our Zoom call yesterday, we believe that the discovery sought in your September 3rd letter is not covered by Rule 16. Discovery in support of selective prosecution and selective enforcement claims is not provided as a matter of right, and we do not believe your client has satisfied the applicable threshold evidentiary showings required by Amstrong/Bass and Washington to compel discovery. We therefore believe that Judge Semper should first rule on your client’s motion for discovery, which we will oppose, and we will revisit the discovery demands outlined in your letter should the Court grant her request.

And while Semper ruled that prosecutors have to provide McIver the communications from Delaney Hall to her, they otherwise appear to have gotten away with this stance.

But two things may lead to a different outcome here.

First, by firing Allen, the White House has made the firing itself an issue, not unlike the Erez Reuveni firing did in the Kilmar Abrego case. At the very least, this news report will add to the bases to claim vindictive prosecution.

But also because Attorney General James shares an attorney, Abbe Lowell, with Lisa Cook. No one has charged Lisa Cook yet — maybe they never will; but nevertheless she has a date at the Supreme Court in January. And that may have the effect of putting several issues before the Court at once (the lawsuit by a bunch of Inspectors General fired at the beginning of Trump’s term is stayed pending all these other cases).

None of that’s to say that SCOTUS will reverse course on letting presidents (or at least this one) fire everyone put in place to exercise some oversight.

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Tyler Lemons’ Vindictive and Selective Bill of Particulars

November 4, 2025/4 Comments/in emptywheel /by emptywheel

I want to congratulate Loaner AUSA Tyler Lemons, who after confessing that Kash Patel’s FBI had violated Jim Comey’s Fourth Amendment rights on Sunday, went on to lay out why Comey is right to demand a Bill of Particulars on Monday. As NYT quipped,

the prosecutors who wrote the filing spent as much time suggesting that Mr. Comey had used the confidant, Daniel C. Richman, a law professor at Columbia University, as a conduit to the news media as they did seeking to reject allegations that the indictment was vindictive.

The introduction is one page. The conclusion is 30 words. And before the 25-page discussion competently addressing Comey’s vindictive and selective prosecution claim, the brief spends 15 pages trying to claim that this prosecution caught Jim Comey lying and obstructing an investigation that would merit charges.

Mostly, though, it demonstrates that poor Tyler Lemons can’t sort out what it is he is prosecuting.

Lemons establishes the need to include transcripts omitted from the indictment

Start with transcripts. The government motion itself includes:

A transcription of Jim Comey’s May 3, 2017 exchange with Chuck Grassley (before he released a memo describing Trump’s misconduct)
A transcription of an exchange Comey had on June 8, 2017 with Susan Collins describing sharing that memo through Richman
A transcription of the September 30, 2020 exchange Comey had with Ted Cruz that is charged as Count One of the indictment

In footnotes to the first,

6 The transcript attached to the defendant’s motion non-substantively corrects Senator Grassley’s second question. See C-Span, User Clip: Sen. Grassley Questions James Comey (May 3, 2017), https://www.c-span.org/clip/senate-committee/user-clip-sen-grassley-questions-jamescomey/4853218.

And third transcriptions, Lemon makes observations about the inaccuracy of transcripts Comey included as exhibits to his vindictive and selective motion (Grassley, Cruz) — though neither were transcripts Comey himself produced.

9 The transcript attached to the defendant’s motion non-substantively corrects Senator Cruz’s questions and the defendant’s first answer; the transcript also erroneously adds the word “that” to Senator Cruz’s final question and omits the word “is” from the same question. See, e.g., POLITICO, Archive: Sen. Ted Cruz questions James Comey on Trump and Clinton investigation leaks (Sept. 26, 2025), https://www.politico.com/video/2025/09/26/archive-sen-ted-cruzquestions-james-comey-on-trump-and-clinton-investigation-leaks-1759922.

But Lemons relegates the transcription of the exchange between Comey and Graham from the September 30, 2020 hearing to an exhibit, thereby facilitating his effort to hide that Graham’s question was about a September 7, 2016 CIA referral, and not about the Russian fabricated Clinton plan generally.

The transcriptions of the Grassley-Comey and Cruz-Comey exchange that Comey included in his literal truth motion do not include the inaccuracies Lemons noted. But as a footnote explained, Comey relied primarily on the video he submitted with that exhibit.

For the rest of this brief, references to the exchange between Mr. Cruz and Mr. Comey cite to the Oversight Hearing Video Clip, which provides the most accurate depiction of the exchange. But the Oversight Hearing Transcript is a useful reference as well.

But as Comey notes in his vindictive motion, his literal truth motion, and his request for a Bill of Particulars motion, the indictment itself misquotes the exchange and in no way identifies what specifically Comey lied about.

the text of Count One both misstates the testimony Mr. Comey actually gave and misquotes the question posed by Senator Ted Cruz. See Mot. to Dismiss Indictment Based on Vindictive & Selective Prosecution, ECF No. 59 at 15; Mot. to Dismiss Based on Fundamental Ambiguity & Literal Truth at 2-4.

So as charged, Comey is being prosecuted for an exchange that didn’t happen the way Lindsey the Insurance Lawyer claimed it did. Comey has asked for accurate specifics, and Lemons emphasized the inaccuracies of what is out there.

Lemons can’t distinguish between the investigations and leaks at issue

Now consider the claimed structure of that passage and what it actually says. Doing so reveals that Lemons doesn’t understand what he’s referring to (or, worse, deliberately misrepresents it).

A. The defendant’s service as FBI Director and the Midyear Exam investigation. (pages 2-4)

This section summarizes the declination part of the DOJ IG Report on Midyear Exam. While this section notes that Trump fired Comey (it doesn’t say on what date in May 2017 Trump did so), it doesn’t admit that the ostensible purpose Trump gave for firing Comey pertained to Comey’s treatment of Hillary, not his refusal to shut down the Russian investigation … an oversight (and Mueller evidence) that Comey now has cause to raise in his Reply.

B. The defendant’s correspondence with Daniel Richman—and Richman’s correspondence with the press—regarding the Midyear Exam investigation. (pages 4-8)

This section starts with a description of Dan Richman, describing him as, “a Columbia Law School professor who also served as an FBI Special Government Employee since 2015.” Nowhere does Lemons mention that Richman’s SGE appointment was lapsed at least as late as October 27, nor that Richman left the FBI on February 7, 2017.

It then spends 2.5 pages describing correspondence Comey had with Dan Richman in advance of this NYT flowchart, citing these exhibits:

January 2, 2015: Letter stating that Richman would not comment on matters he “work[s] on for the Bureau”
October 29, 2016: Text saying, “The country can’t seem to handle your finding stuff”
October 30, 2016: Richman offering to write an op-ed for NYT
November 1-2, 2016: Comey suggests perhaps Richman can make Mike Schmidt smarter
November 2, 2016: Richman noting story about Hillary

Then it spends a page describing correspondence relating to this article, the article at the core of Arctic Haze. But it does so backwards. It first describes Comey’s April 23, 2017 email thanking Richman for what he said — on the record — in it. Then it describes emails Richman sent on February 11, 2017, four days after FBI claims he left FBI, soliciting Chuck Rosenberg’s involvement in what would be the April 23 story. There’s no mention of Comey’s involvement, in advance, in that story.

And then, still under the heading of articles about Midyear Exam, Lemons describes texts between Mike Schmidt and Richman, between May 11 and 16, about Comey’s firing, specifically referencing the dinner at which Trump demanded Comey’s loyalty. Those text messages culminate in the publication of this story, “Comey Memo Says Trump Asked Him to End Flynn Investigation,” the story first revealing that Trump asked Comey to let the Flynn prosecution go.

C. The defendant’s disclosure of memoranda concerning meetings with the President and his pertinent Senate testimony. (pages 9-12)

Having already described the publication of the story about the memos, Lemons then describes Comey’s testimony in 2017 about them. He describes Comey telling Grassley on May 3, 6 days before he was fired and 8 days before the Schmidt and Richman texts start, that he had not asked anyone to serve as an anonymous source in news stories about the Clinton or Trump investigations (note, on that day there was no Trump investigation, there was an investigation into others). He describes Comey, three weeks after the story (Lemons doesn’t provide the date, June 8, which is important context to the next section showing Trump wailing about “leaks”) truthfully telling Susan Collins that he asked a friend to share the memo with a reporter.

COMEY: I asked—the president tweeted on Friday [May 12], after I got fired, that I better hope there’s not tapes. I woke up in the middle of the night on Monday night, because it didn’t dawn on me originally that there might be corroboration for our conversation. There might be a tape.

And my judgment was, I needed to get that out into the public square. And so I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a friend of mine to do it.

Which he immediately follows with Ted Cruz’ questions from 2020, as if Richman sharing the memos could be responsive (much less material) to Ted Cruz’ question about asking someone at the FBI to share stuff anonymously.

D. The President’s concern with the defendant’s official conduct. (pages 12-14)

The next bit is central to the Loaner AUSAs’ claim that Trump wasn’t prosecuting Comey for his opposition but instead out of a legitimate concern about leaks. A one page description of Trump’s obsession with what he claimed were Comey’s leaks treats the Richman memos as a leak, even though Comey admitted to releasing them within a month.

Shortly after the defendant was fired, the President began to publicly express his concern that the defendant had leaked (or authorized the leak of) investigative information and had given false or misleading testimony to cover it up. For example, on May 31, 2017, he referenced “the false or misleading testimony by James Comey.” Def. Mem., Dkt. No. 59-4 at 2. On June 9, he posted, “Comey is a leaker!” Id. Two days later, he posted, “I believe the James Comey leaks will be far more prevalent than anyone ever thought possible. Totally illegal?” Id. In July, he reposted a news report stating, “Report accuses material James Comey leaked to a friend contained top secret information.” Id. In October 2017, he posted that “James Comey lied and leaked and totally protected Hillary Clinton.” Id. at 3. In March 2018, the President posted, “Wow, watch Comey lie under oath to Senator G when asked ‘have you ever been an anonymous source … or known someone else to be an anonymous source…?’ He said strongly ‘never, no.’ He lied as shown clearly on @foxandfriends.” Id. at 6.

This passage is triply misleading.

First, sharing the memos was anonymous at first, but it was not a leak, Comey admitted to it within a month, and it was investigative mostly insofar as it predicated an investigation into Trump. It became investigative because Trump fired Comey.

Second, as noted, through the structure of this section, Lemons does a number of things to falsely suggest this could be the charged lie, when it could not, for several different reasons I’ll explain below.

Most importantly, it ignores the nine complaints Trump made about Comey, listed in Comey’s 60 page exhibit of those complaints, before the first one listed in the response, which started with a claim (debunked by the exhibits in this motion) that “Comey was the best thing that ever happened to Hillary Clinton,” to say nothing of Trump’s “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press,” to which the memo release was a response.

E. The defendant’s public posts about President Trump. (page 14)

The next section attempts to show that Trump was concerned about Comey’s “leaking” (that is exposure of Trump’s misconduct) before Comey said anything bad about Trump — but I’m very confused how this sentence — “his motion shows his first social-media post speaking out about the Trump administration (not the President directly) came in June 2017, over a month after he was fired—and after the President had publicly posted about his “false or misleading testimony” — is consistent with Comey giving testimony about Trump’s misconduct and Comey’s accurate prediction Trump would lie about it on June 8, 2017, exactly a month after he was fired (in the hearing in which he told Collins about the memos). Maybe I just don’t understand. Or maybe in his desperation to sell a narrative, Lemons is lying to the court about the substance of Comey’s testimony.

This has the effect of making the memos the chicken and the egg of this investigation, which nevertheless could not be included in either charge against Comey.

F. Law enforcement’s investigations into unauthorized public disclosures. (pages 14-15)

Having already confessed he doesn’t know what a leak is and doesn’t know what FBI employ is, Lemons then introduces his desperate attempt to claim that receiving a briefing that might be about what we now know is Russian disinformation 19 days after not receiving a memo about it that probably emphasizes something else should be recalled when Lindsey Graham asked about it in specific reference (a reference Lemons buries) to memo redacted in a way that would obscure its import.

I will return to this section’s description of the 18 USC 2071 investigation trying to criminalize the non-removal of documents from the FBI as removal from the FBI. (!?!?!) Apparently, on July 21, 2025, Jack Eckenrode and Miles Starr decided that leaving a bunch of documents that were already preserved in FBI servers in an inventory room amounted to removal. Mostly it’s an attempt to indulge Kash Patel’s stupidest conspiracy theories.

But the important point, for the purpose of this filing, is that, under the heading promising information about “unauthorized public disclosures,” Lemons falsely claims an investigation into what would, if true, be an effort to bury evidence, was instead an investigation into sharing it.

G. Appointment of U.S. Attorney Halligan and the indictment. (pages 15-17)

And that’s important because the excuse Lemons offers for the hiring of Lindsey Halligan is Trump’s obsession with wildly inaccurate propaganda about the release of the Arctic Haze file, which leads directly from a John Solomon article treating the NYT article about the Hillary investigation as if it pertained to Russia.

On August 13, 2025, the President posted a link to a Fox News segment with the text, “DOCUMENTS REVEAL JAMES COMEY ASSOCIATE LEAKED CLASSIFIED INFORMATION TO THE NYT.” Donald J. Trump (@realDonaldTrump), TruthSocial (Aug. 13, 2025 at 12:42 ET). 12 The next day, he posted a link to a news article discussed in the segment. Donald J. Trump (@realDonaldTrump), TruthSocial (Aug. 14, 2025 at 7:02 ET). 13 The article detailed FBI documents recently disclosed to Congress and indicated that Richman had admitted “that he was given access by Comey to what turned out to be highly classified information up to the SCI level and sometimes provided information to reporters on an anonymous basis.” John Solomon and Jerry Dunleavy, Comey’s media mole told FBI he shaped Russia narrative, needed ‘discount’ to deny leaking intel, Just the News (Aug. 12, 2025).14 On September 20, 2025, the President posted:

Pam: I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.” Then we almost put in a Democrat supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so. Lindsey Halligan is a really good lawyer, and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT

None of this actually helps Lemons, because it suggests Trump hired Halligan specifically to open an investigation into an already declined prosecution.

But it does create a narrative, one Lemons uses to claim that Trump was not out to get Comey because Comey disclosed Trump’s fundamental corruption, but instead because Comey leaked classified information, a claim not backed by a single thing in this filing.

Indeed, what the filing does, in part, is prove that Trump falsely accused Comey of leaking classified information for years, without anything to back that claim.

In Section A, Lemons declines to address that Trump ostensibly fired Comey because of the Hillary investigation, not the Russian one. In Section B, Lemons treated a story about the Trump’s misconduct as instead about Hillary investigation. In Section D, he pretended Trump was concerned about leaking rather than being exposed as corrupt. In Section F, Lemons misrepresents a bogus cover-up claim as instead a leak investigation. In Section G, Lemons relies on a John Solomon post confusing the Hillary investigation with the Russian investigation.

The guy who plans to present all this to a jury in a few months appears unable to distinguish between the Hillary investigations (remember, the Andrew McCabe sourcing Ted Cruz asked about was about the Clinton Foundation, not the emails) and the Russian investigation, which Lemons exacerbates by imagining that the Russian investigation was always about Trump.

Lemons may already recognize that Lindsey the Insurance Lawyer charged the wrong things (which is why Comey’s request for grand jury transcripts is merited).

None of these stories match the elements of the offense

The problem for Lemons is that none of these scenarios fit the elements of the offense for the crimes charged.

For the 18 USC 1001 charge, prosecutors need to prove that Comey knowingly lied about a leak about Hillary he authorized Richman to share anonymously while he was at the FBI.

As a threshold matter, Comey will be able to argue the charges cannot survive, because the hearing scope did not include the Hillary investigations.

1 Before the hearing, the committee agreed that it would be limited to four specific topics: (i) “Crossfire Hurricane,” (ii) the December 2019 Department of Justice Inspector General report’s “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation,” (iii) the Carter Page FISA applications, and (iv) Christopher Steele’s source network and primary sub-source.

So any story about Hillary is, by definition, outside of scope.

The only one of these stories where there’s some evidence that Comey authorized a story about Hillary in which Richman was not named was the November 2016 one. Even by then, however, the FBI was trying to fix Richman’s Special Government Employee.

As for the 18 USC 1505 charge, prosecutors will need to prove that Comey told lies that were intentional that impeded that investigation. Because of the scope of the hearing (and therefore the investigation), they can’t argue the two Hillary stories are material. Comey was aware of the scope of the hearing and Hillary wasn’t part of it.

There’s no way they can argue that Comey should have admitted asking Richman to serve as an anonymous source for the May 2017 story impeded the Senate investigation, because he had admitted that years earlier!!

That leaves just the Lindsey Graham question, which was specifically about whether Comey remembered the CIA referral, dated September 7, that Kash Patel had recently released in redacted — and therefore likely hopelessly misleading — form. As the transcript Lemons buries in an exhibit makes clear, the question — the one the grand jury no-billed — was not whether Comey was briefed; it was whether he recalls getting the document itself (Lindsey misstates what this document even was).

Lindsey: Do you recall getting an inquiry from the CI, excuse me, the intelligence community in September, 2016, about a concern that the Clinton campaign was going to create a scandal regarding Trump and Russia?

Mr. Comey: I do not.

Senator Graham: You don’t remember getting a investigatory lead from the intelligence community, hang on a second … Let me find my document here.

Speaker 3: There it is.

Senator Graham: September the Seventh, 2016, the US intelligence officials forwarded an investigative referral to FBI Director James Comey and Assistant Director of Counterintelligence Peter Strzok regarding US presidential candidate Hillary Clinton’s approval of a plan concerning US presidential candidate Donald Trump and Russian hackers hampering US elections as a means of distracting the public from her use of a private email server. You don’t remember getting that or being talk, that doesn’t …

Mr. Comey: That doesn’t ring any bells with me.

Lemons makes much of the fact that a copy of the referral was found in a storage room at FBI where other Durham materials were found; he claims to have evidence that it was once in the FBI Director’s office (but does not date when that was). That fact will face admissibility problems given Jack Eckenrode’s role in all that, which will in turn elicit questions why Eckenrode continues to base his investigations on what he discovered four years ago was Russian disinformation.

Poor Loaner Lemons will be forced to explain why Brennan was briefing Comey on a topic Comey had been informed of 19 days earlier, and why Comey would write that down as if it were news.

It will not be a slam dunk proving that the reference, HRC plan to tie Trump, pertains to the same SVR documents that the referral did. I know how I would do it. But I also know how a focus on “undermine HRC” just above that will make it easy to present this reference as Brennan (presumably) said he understood it–to be a reference to the victimization of Hillary, meaning Graham’s description of it would unrecognizable to Comey. As this reference appears, it backs Brennan’s conception of how most of the IC (aside from the Cyber Agents who fucked up the Alfa Bank Spectrum Health investigation) viewed this reference, as an attack on Hillary.

Ultimately, the defense to treating this as the basis for the obstruction charge (which I suspect it is) is to lay out how painfully wrong right wingers have been about what happened in 2016 from the start.

In Lemons’ bid to claim there was basis to charge Comey, he instead made it quite clear that none of his claimed issues match the charges as charged.

Which is to say, he made an exceptionally good case that Comey has reason to wonder what the fuck he is actually charged with.

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Blind Man’s Bluff in the Jim Comey Docket

Threshold issues

The drama

The oddities of a three-judge docket

When caught lying, troll

Seventh Circuit Panel Allows Trump To Assault Chicago Residents

Trump Trips over Own Feet Hastening Parallel Retreats

Stephen Miller Prioritized This Guy’s Shame Over Children Being Raped

Trailer Park Slum Lord: The Generational Corruption of Bill Pulte

Gabriel Diaz’ 14 Exhibits

Spill! The EDVA Case against Jim Comey Could Well Harm the Even More Corrupt SDFL Case

The arguably legal emails don’t prove DOJ’s case

The emails that come closest to proving the government’s case may be out of scope

The privileged material was prohibited under the previous warrants

The Comey memos are unresponsive to this investigation

Tyler Lemons Caught Jack Eckenrode Committing a Capstone Crime

The IG Firing that May Matter: FHFA

Tyler Lemons’ Vindictive and Selective Bill of Particulars

Lemons establishes the need to include transcripts omitted from the indictment

Lemons can’t distinguish between the investigations and leaks at issue

A. The defendant’s service as FBI Director and the Midyear Exam investigation. (pages 2-4)

B. The defendant’s correspondence with Daniel Richman—and Richman’s correspondence with the press—regarding the Midyear Exam investigation. (pages 4-8)

C. The defendant’s disclosure of memoranda concerning meetings with the President and his pertinent Senate testimony. (pages 9-12)

D. The President’s concern with the defendant’s official conduct. (pages 12-14)

E. The defendant’s public posts about President Trump. (page 14)

F. Law enforcement’s investigations into unauthorized public disclosures. (pages 14-15)

G. Appointment of U.S. Attorney Halligan and the indictment. (pages 15-17)

None of these stories match the elements of the offense

Interesting links

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