Lindsey’s Loaner AUSAs Can’t Decide What the Clinton Investigation Is

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Remember how I said that the hopeless confusion Tyler Lemons exhibited in his response to Comey’s motion to dismiss for vindictive and selective prosecution showed why Comey was right to request a Bill of Particulars? In that filing, Lemons played games with transcripts, confused what was a Clinton investigation, what a Russian investigation not yet focused on Trump, and what was, instead, inaccurate propaganda from John Solomon?

Well, if anything, the problem has gotten worse.

Loaner AUSA Gabriel Diaz submitted the following response memos today:

After Lemons spent 15 pages of last week’s vindictive prosecution response — laying out (A) November 2016 communications between Jim Comey and Dan Richman leading to this story, (B) February 2017 communications with Chuck Rosenberg leading to this story, and (C) May 2017 communications between Dan Richman and Mike Schmidt leading to this story, as well as presenting (D) a wildly misleading story about the “Clinton Plan,” the Gabriel[s] spent five pages throwing half that out.

(B) and (C) are gone, perhaps sacrificed to the reality that Dan Richman had left the FBI before those, meaning they didn’t fit the terms of Ted Cruz’ question. Or maybe, in the case of (C), to the possibility their attorney-client breach will blow up in their face.

After Lemons’ Response to vindictive and selection bitched twice that publicly available transcripts Comey had used included minor inaccuracies,

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.

[snip]

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.

The Response on Bill of Particulars noted that their own did too.

2 The Government’s response in opposition to the Defendant’s motion to dismiss erroneously omitted the word “the” before the words “Clinton investigation” in quoting Senator Cruz. See Dkt. 138 at 11.

Yet, if either the Response on Bill of Particulars or the Response to literal truth addresses this complaint from Comey, I don’t see it.

As detailed in Mr. Comey’s Motion to Dismiss the Indictment Based on Vindictive and Selective Prosecution, as well as the Motion to Dismiss the Indictment Based on Fundamental Ambiguity and Literal Truth, the text of Count One both misstates the testimony Mr. Comey actually gave and misquotes the question.

We’re two months into this thing and no one has gotten around to addressing the fact that the language in the indictment misrepresents what happened.

Remember: While Diaz said Lindsey the Insurance Lawyer showed 14 exhibits to the grand jury, none of those lay out the Cruz and Comey exchange, so we can’t entirely rule out Lindsey the Insurance Lawyer just … making up what was said, as she assuredly did in the indictment.

Then, having included a full transcript of the Cruz-Comey exchange in the filing, Lemons (or is it Shedd?) dismissed the way Cruz misspoke his lines — substituting “administration” for “investigation” in his question — this way.

The “other ambiguities” do no more to obscure the meaning of Senator Cruz’s questions. See Def. Mem., Dkt. 105 at 14. The defendant flags Senator Cruz’s mistaken use of “Clinton administration” instead of “Clinton investigation.” See Oversight Hearing Transcript at 11. Yet Senator Cruz had correctly referred to the “Clinton investigation” two sentences prior and he was recounting the defendant’s own testimony, so the mistake would have been obvious to the defendant.

But then it largely dodges the way Cruz framed his question to focus on Andrew McCabe.

Under the narrow interpretation, Senator Cruz asked the defendant only whether he authorized McCabe to be an anonymous source. Under the broad interpretation, Senator Cruz asked the defendant whether he authorized anyone at the FBI to be an anonymous source.

The broad interpretation is the better one.

That exacerbates a problem.

There wasn’t one — the — Clinton investigation in 2016.

There were two. And the one Cruz was invoking by addressing McCabe’s involvement in a WSJ story was not the email investigation. It was the Clinton Foundation investigation.

By October 25, 2016, McCabe had been notified that Barrett was working on a follow-up story to the October 23 article that would cover McCabe’s oversight of the CF Investigation and potential connections with McAuliffe campaign contributions to McCabe’s wife. McCabe thereafter authorized Special Counsel and AD/OPA to talk to Barrett about this follow-up story.

Lindsey’s Loaner AUSAs appear not to understand that we’re still fighting over a leak (plus McCabe’s response) that revealed a previously undisclosed investigation days before an election and somehow Trump is the victim? And so while they’re excusing Cruz’ imprecision they’re committing more of their own.

Now go back to the Response to the Bill of Particulars request. As Lemons did in the original map of the investigation, the Gabriel[s] buried the transcript for the exchanges about the “Clinton plan” in an exhibit, thereby burying the fact that they keep misrepresenting Lindsey Graham’s questions worse and worse. They don’t correct Lindsey Graham’s lie about this being an investigative referral. They couldn’t be bothered with the slop of his use of the word “taught.” And of course they don’t account for the fact that to Comey (and John Brennan), these details were interesting for what they said about Russia’s hacking of Hillary-related victims, not about the totally legal and normal thing Hillary was alleged to be doing, engaging in politics.

More insane still, the Gabriel[s] turn the “Clinton plan,” into a story about the Clinton email investigation.

During the same September 30, 2020 hearing, the defendant was asked by Senator Graham whether he remembered being “getting” or being “taught” of “a[n] investigatory lead from the intelligence community” regarding “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,” i.e., the conduct that the FBI investigated during the Midyear Exam investigation. See Dkt. 138-14 at 1. The defendant replied that that information “d[idn’t] ring any bells with [him].” See id. He similarly informed Senator Hawley that he did not “remember” receiving the investigatory [sic] referral, or “anything described” therein. See id. at 5. The government has nevertheless determined that the defendant’s handwritten notes appear to show that he was informed in September 2016 regarding an “HRC plan to tie Trump.” See Dkt. 138 at 14–15; see also Dkt. 138-13. [my emphasis]

Note, the Gabriel[s] are misrepresenting the transcript here. Comey said, “I don’t remember receiving anything that is described in that letter,” referring back to the misleading letter Ratcliffe wrote about all this, not the referral itself.

Once again, proving Comey’s point that what prosecutors are presenting as the alleged lies are, themselves, lies.

Having misrepresented the alleged lie, some pages later, they confess that, yup, they’re prosecuting Comey for the conduct they got no-billed on.

But, as provided in discovery and via the indictment, the government intends to seek the admission of evidence at trial on this count regarding the defendant’s statements to senators during the September 30, 2020, committee hearing. For instance, the defendant’s statements to Senators Grassley and Cruz regarding his use of Richman as an anonymous source concerning the Clinton email investigation and his statements to Senators Graham and Hawley regarding his alleged lack of memory concerning the so-called Clinton plan to “tie Trump” to Russia.

I feel like maybe we’re a second or generation into frothy misrepresentations of what happened in 2016 and 2017, and these young AUSAs are badly in need of a roadmap laying out the actual events behind Grampa Trump’s delirium, rather than just regurgitating the slop that John Solomon feeds them.

There’s a reality here, and these Loaner AUSAs seem blissfully unaware of that reality.

And that’s all before you get into the fact that whatever frothy Republicans were misled into believing by Ratcliffe back in 2020, taxpayers have spent millions of dollars to confirm all this is Russian disinformation, and having determined that, those who use it to get indictments are (per John Durham and his lead investigator Jack Eckenrode) committing a crime.

Finally, having redefined Russian disinformation to be about Hillary’s email investigation rather than the conspiracy theory that the plan was true and proven by Christopher Steele getting snookered by Oleg Deripaska or Michael Sussmann passing along Rodney Joffe’s discovery of a real anomaly in good faith, they’ve made the “Clinton plan” useless for the one thing it might have been used for: materiality. As Comey noted in his Bill of Particulars motion, that 2020 hearing had a clear scope, and that clear scope must be adopted to define the scope of the investigation Comey allegedly obstructed.

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.

That wasn’t a hearing about Clinton’s emails! So every effort to retcon events so they’ll fit the Ted Cruz question in fact makes the evidence useless to prove Comey obstructed anything. Graham did, very much, want to suggest that Comey should have viewed the dossier more skeptically having been exposed to Russian disinformation claiming a Clinton plan, which is why he asked the question.

But Lindsey’s Loaner AUSAs, in a desperate bid to fit the available facts to their false claims about false claims, have turned it into something else.

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Trump Already Confessed He Knew about “the Girls”

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On the same day Adelita Grijalva will finally be sworn in and provide the 218th vote to force a vote to release the Epstein files, Oversight Dems have released three records from Jeffrey Epstein’s estate making it clear Trump is more implicated in Epstein’s crimes than he has let on.

There’s one email that will ensure that Melania Trump backs off her threat to sue Michael Wolff. He and the sex trafficker were discussing how to craft an answer Trump could give to CNN about their relationship during the 2015 election.

Effectively, Epstein was offering to provide Trump an answer to make things easy on Trump.

The most damning describes Epstein, discussing with Ghislaine Maxwell in 2011 one of the victims spending “hours at [Epstein’s] house with Trump.

That conversation transpired in April 2011, just a month before Trump dropped out of the presidential race.

The most intriguing was another email exchanged with Wolff, just six months before Epstein was arrested and then suicided, in which Epstein claimed Trump was lying when he “said he asked me to resign, never a member  ever.”

One of the first times this claim was aired was in a 2007 Page Six story that preceded many of the details becoming public.

Meanwhile, the Mar-a-Lago Club in Palm Beach last night confirmed a Web site report that Epstein has been banned there. “He would use the spa to try to procure girls. But one of them, a masseuse about 18 years old, he tried to get her to do things,” a source told us. “Her father found out about it and went absolutely ape-[bleep]. Epstein’s not allowed back.” Epstein denies he is banned from Mar-a-Lago and says, in fact, he was recently invited to an event there.

Trump has, at times, admitted he served as an anonymous source for Page Six.

Trump repeated this story, in two parts, in July.

First, days after Todd Blanche sat down with Ghislaine Maxwell, Trump described that Epstein “hired help” from Trump, and continued doing so even after Trump “said, don’t ever do that again,” implying that he told Epstein to stop.

What caused the breach with him? Very easy to explain. But I don’t want to waste your time by explaining it. But for years I wouldn’t talk to Jeffrey Epstein. I wouldn’t talk. Because he did something that was inappropriate. He hired help. And I said, don’t ever do that again. He stole people that worked for me. I said, don’t ever do that again. He did it again. And I threw him out of the place. Persona non grata. I threw him out. And that was it.

Then, the next day, Trump confessed that Virginia Giuffre was one of the “young women” that Epstein “stole.”

Reporter 1: I’m just curious. Were some of the workers that were taken from you — were some of them young women?

Trump: Were some of them?

Reporter 1: Were some of them young women?

Trump: Well, I don’t wanna say, but everyone knows the people that were taken. It was, the concept of taking people that work for me is bad. But that story’s been pretty well out there. And the answer is, yes, they were.

[inaudible]

Trump: In the spa. People that work in the spa. I have a great spa, one of the best spas in the world at Mar-a-Lago. And people were taken out of the spa. Hired. By him. In other words, gone. And um, other people would come and complain. This guy is taking people from the spa. I didn’t know that. And then when I heard about it I told him, I said, listen, we don’t want you taking our people, whether they were spa or not spa. I don’t want him taking people. And he was fine and then not too long after that he did it again and I said Out of here.

Reporter 2: Mr. President, did one of those stolen persons, did that include Virginia Giuffre?

Trump: Uh, I don’t know. I think she worked at the spa. I think so. I think that was one of the people, yeah. He stole her. And by the way, she had no complaints about us, as you know. None whatsoever.

Both these limited hangouts, delivered in the wake of Blanche’s interviews with Maxwell, blame Epstein for stealing his girls.

But it wasn’t Epstein stealing the girls and he didn’t tell Epstein to stop.

He told Maxwell to stop.

And then he lied and claimed he had kicked Epstein out as a result.

And then Todd Blanche moved Epstein’s co-conspirator, who didn’t mention the girl Trump spent hours with or remind Blanche of Trump’s knowledge she was trafficking girls from his club, into comfier digs.

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“Witch Hunt!” Jim Comey Channels Media Matters

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One of the most scathing passages in Jim Comey’s reply brief on his vindictive prosecution claim repeats something Media Matters does persistently to understand how Donald Trump’s brain works.

It’s a reply to this passage of the government response, which is the cornerstone to their claim that Donald Trump’s years of attacks on Comey weren’t animus, they reflected, instead, a sound concern about crime.

The defendant argues that he’s being prosecuted to punish him for being a “[v]ocal [c]ritic of President Trump.” Def. Mem., Dkt. No. 59 at 11. Yet according to his own version of events, the earliest that he “spoke out on public and political issues” was June 8, 2017. Id.; see Def. Mem., Dkt. No. 59-4 at 2 (pinning the earliest exercise of the defendant’s First Amendment rights to criticize the Trump Administration to a New York Times article published on June 8, 2017). By that point, however, the President had already accused him of committing a crime. On May 21, [sic] 2017, less than three weeks after the defendant first testified that he never “authorized anyone at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation,” Def. Mem., Dkt. No. 59-2 at 4, the President publicly accused him of giving “false or misleading testimony,” Def. Mem., Dkt. No. 59-4 at 2. That accusation of criminal conduct was mounted before the defendant first stepped into his self-described role as a vocal critic of the President. And that “sequence of public events” should disabuse any notion that the defendant is being punished for exercising his First Amendment rights. See Wilson, 262 F.3d at 317 (reasoning that a defendant’s “theory on proving causation” will be “belied by the record” if the government’s “efforts to prosecute [him] preceded” his exercise of a protected right).

I focused closely on this passage — on other problems with this passage — here, noting that prosecutors had kicked off a fight about chickens and eggs.

I didn’t note that Lindsey’s Loaner AUSAs got the date wrong, May 21 instead of May 31 (Comey was generous enough not to note it), a date correctly recorded in both Comey’s appendices collecting these things (one, two).

[Note my screen cap is +5.]

But I missed the even bigger problem with this argument.

Lindsey’s Loaner AUSAs didn’t check what Trump was watching on Fox and Friends that day.

On May 19, 2017, in the uproar that followed, the Senate Intelligence Committee announced that Mr. Comey would testify before the Committee about his dismissal and the investigation into Russian interference with the 2016 election. Former FBI Director Comey Agrees to Testify in Open Session at Senate Intel Committee, U.S. Senate Select Committee on Intelligence (May 19, 2017), https://perma.cc/HC5K-KYUV.

That announcement was followed on May 31, 2017, by the first of the President’s allusions to “false or misleading” testimony by Mr. Comey. The government suggests that this tweet shows that the President’s prosecutorial motive arose from Mr. Comey’s May 3, 2017 Senate Judiciary Committee testimony and that he voiced it before Mr. Comey entered into public debate. ECF No. 138 at 28. The tweet shows nothing of the kind.

To begin, the tweet does not reflect the President’s opinion about Mr. Comey, nor does it refer to Mr. Comey’s May 3 testimony as the government misleadingly implies. Instead, the tweet quotes a report based on a conversation on Fox and Friends describing a letter written by former Trump campaign advisor Carter Page stating Page’s view of Mr. Comey’s March 20, 2017 testimony about links between the Trump campaign and the Russia government.5 This tweet can hardly qualify as expressing the President’s legitimate prosecutorial motive—as opposed to relaying hearsay from a television program with no factual basis. In fact, it is the type of unfounded accusation that displays animus rather than a genuine interest in justice. And despite the government’s reliance on it as preceding Mr. Comey’s public statements, the tweet came after the news broke about Mr. Comey’s imminent testimony, i.e., after the President knew that Mr. Comey intended to exercise his First Amendment rights to speak publicly about Mr. Trump’s conduct in office. The President’s preemptive effort to discredit Mr. Comey reflects his animus triggered by Mr. Comey’s anticipated protected speech.

Finally, and most damaging to the government’s theory of the President’s longstanding prosecutorial motive to bring this case, the tweet has nothing to do with this prosecution: it was issued years before the testimony that forms the basis for the charges against Mr. Comey.

5 The tweet (issued in two parts) says: “So now it is reported that the Democrats who have excoriated Carter Page about Russia, don’t want him to testify. He blows away their….” “…case against him & now wants to clear his name by showing ‘the false or misleading testimony by James Comey, John Brennan…’ Witch Hunt!” Appendix at 1. The tweet was issued thirty minutes after Fox and Friends broke the same story. Id. And Mr. Comey had testified publicly before the House Intelligence Committee on March 20, 2017, to confirm the Trump-campaign and Russian-interference investigation. See Mueller Report, supra n.4 at 52-53

Trump was parroting Carter Page complaining about Comey’s March 20 testimony, not commenting on Comey’s May 3 testimony, testimony that prosecutors want to make relevant to this case.

Donald Trump was parroting Carter Page and that’s what prosecutors claimed was the genesis of Trump’s purported good faith prosecutorial concern about Comey’s leaking.

Oops.

There is, to be clear, a fair amount of chicken and egg in Comey’s reply, too, some not entirely persuasive (though that pertains to their representation of the evidence prosecutors presented, not the legal argument, and so could be mooted if some of this gets suppressed). But it reads with the confidence of people who, now, have the exhibits with which prosecutors hope to prove their case, as well as a sense of whether and if so which exhibits will be thrown out as unlawfully obtained.

And in the process, Comey has demonstrated to the Loaner AUSAs how little they know about this whole story and the man whose batshit rants they’re treating as credible.

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Kash Patel’s Plot Against Jim Comey Thickens!

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The two sides have submitted additional filings in advance of a hearing about the attorney-client and Fourth Amendment violations in the Jim Comey case:

 

The government claims that Comey hasn’t demonstrated a need to see what happened in the grand jury because there’s no way any privileged or Fourth Amendment violative material was presented, and even if it were, that would be insufficient to dismiss the indictment, which is the standard.

Even assuming the defendant could prove that the government violated the Fourth Amendment or attorney-client privilege in its grand jury presentation (and to be clear, he cannot), the remedy would be to suppress that evidence at trial—not to dismiss the indictment. So, the defendant has not shown that “a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” Fed. R. Crim. P. 6(e)(3)(E)(ii). He is not entitled to access grand jury material.

There are problems with both these claims.

First, Miles Starr was briefed orally on the comms between Dan Richman and Mike Schmidt and Jim Comey the morning of the grand jury presentment. Then, the FBI Agent who was tainted provided a written document that only covered stuff on May 11.

On the morning of September 25, 2025, the team was preparing for an indictment of James Comey, to occur later that afternoon. SA Warren provided case agent SA Miles Starr and an FBI Office of General Counsel (OGC) attorney a limited overview of the text message communications to and from “Michael Garcia” (now understood to be Daniel Richman). SA Warren advised SA Starr and the FBI OGC attorney that some of the messages appeared to reference potential future legal representation. The FBI OGC attorney immediately advised that any of the text message communications referencing potential future legal representation should not be part of the indictment preparation. 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 DOJ itself recognizes that anything after May 9, the day Comey was fired, may be privileged.

4 The defendant was removed as FBI Director on May 9, 2017. He told the Office of Inspector General that “the day after his removal, or ‘very shortly thereafter,’ he retained attorneys Patrick Fitzgerald, David Kelley, and Daniel Richman.” Dkt. No. 138-11 at 33 (Aug. 2019 Office of the Inspector General Report). Any claim of privilege involving those attorneys would necessarily arise after May 9, 2017.

So they took insufficient steps to prevent taint of the grand jury, because materials between Richman and Comey from May 9 and 10 may well be privileged.

Even if that were sufficient, there’s no reason why communications between Comey and Richman in May could be deemed relevant to the grand jury. That’s because he admitted sharing information with Richman back in 2017. He didn’t hide it from the Senate Judiciary Committee.

Meanwhile, the government has no fucking clue whether it presented other Fourth Amendment violative content to the Grand Jury. They confessed last night, days after telling Magistrate Judge William Fitzpatrick they had complied with his order to provide this information, that they had no fucking clue whether they were looking at data that included both scoped and unscoped content (though this passage suggests that the materials obtained from Columbia, which includes the only material that remotely matches the first charge, with the second warrant were scoped).

5 The Order also required the government to provide, in writing, by the same deadline: “Confirmation of whether the Government has divided the materials searched pursuant to the four 2019 and 2020 warrants at issue into materials that are responsive and non-responsive to those warrants, and, if so, a detailed explanation of the methodology used to make that determination; A detailed explanation of whether, and for what period of time, the Government has preserved any materials identified as non-responsive to the four search warrants; A description identifying which materials have been identified as responsive, if any; and A description identifying which materials have previously been designated as privileged.” ECF No. 161 at 1-2.

Despite certifying on November 6 that it had complied with the Court’s Order, ECF No. 163, the government did not provide this information until the evening of November 9, 2025, in response to a defense inquiry. The government told the defense that it “does not know” whether there are responsive sets for the first, third, and fourth warrants, or whether it has produced those to the defense, and said that in that regard, “we are still pulling prior emails” and the “agent reviewed the filtered material through relativity but there appears to be a loss of data that we are currently trying to restore.”

Remember, this entire investigation started when Kash discovered documents that had been handled improperly. And now, because these documents have been handled improperly, his own team has been violating Jim Comey’s Fourth Amendment rights.

There are several more alarming details in today’s filings. First, both FBI agents exposed to tainted information (in addition to Miles Starr, from whom DOJ didn’t bother to obtain an affidavit, and who has not been withdrawn from this or any other investigative teams) are part of the Director’s Advisory Team, meaning they work directly for Kash Patel.

The agent who first saw the privileged material claims:

  • They didn’t know who Michael Garcia was (a pseudonym Richman used for these communications), but nevertheless reviewed them as part of a search for communications between Comey and Richman
  • They were handed the entire extraction of Dan Richman’s devices, suggesting it did not extract the privilege reviewed content

Indeed, the materials DOJ provided Comey — the ones they had been accessing — had not been filtered for privilege or responsiveness.

4 On November 6, 2025, the government produced various copies of what appear to be the raw returns for the search warrants at issue, unscoped for responsiveness and filtered for Mr. Richman’s privileges. But the government provided incorrect passwords to large subsets of those materials. The defense engaged a vendor who worked throughout the weekend to load and process those materials; the government provided the correct passwords on November 9, 2025.

Effectively, Kash has been investigating Comey using a general warrant on his friend Dan Richman.

It’s not just Kash and his personal squad of Jim Comey hunters who’ve violated Comey’s Fourth Amendment rights, Comey’s filing suggests.

Pam Bondi’s imagined “ratification” of the grand jury proceedings — the ones based on incomplete records — would have exposed her, too, to unlawful material.

2 Concerns about taint arising from the improper use of potentially privileged and unconstitutionally-obtained materials are heightened because of the government’s continued use of the materials obtained pursuant to the warrants and grand jury transcripts. On October 31, 2025, the Attorney General purported to ratify the indictment based on her review of the grand jury proceedings. ECF No. 137-1 at 2-3. If that review entailed further improper use of privileged or unconstitutionally-obtained materials insofar as they were presented to the grand jury, it casts further doubt on the propriety of the government’s conduct of this case. The government produced the grand jury materials on November 5, 2025 to Judge Currie for in camera review, and thus could quickly produce the same materials to the defense. See ECF No. 158.

The Loaner AUSAs are trying to cut their losses, by asking Fitzpatrick to conduct a review of the grand jury materials himself — no doubt to prevent Comey from using grand jury material in his challenge of these warrants, which is currently due on November 19.

But there’s virtually no way he would be able to figure out if Lindsey the Insurance Lawyer presented material that violated Comey’s Fourth Amendment rights.

This should all be sorted out at a hearing at 4PM ET.

Update: Fitzpatrick came in ready to accept the government’s request he review this in camera. But after it became clear he would not budge on that, Rebekah Donaleski asked to submit something ex parte tomorrow to lay out where they believe the violations are.

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Tyler Lemons Caught Jack Eckenrode Committing a Capstone Crime

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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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Jim Comey and the Crown Jewels of the Fevered Conspiracy against Rights Conspiracy

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For a number of reasons, I’m not as convinced as others that right wing blowhard Mike Davis’ insinuation that a grand jury scheduled to be seated in Fort Pierce, FL, in January would serve the purpose of stitching together all his feverish conspiracy theories into a conspiracy against Trump’s rights case.

What if Mike Davis is telling the truth, for once?

But this post assumes that his comments do reflect inside knowledge.

That is, this post considers the likelihood that someone — Jack Eckenrode would be part of that team, possibly Deputy FBI Director Andrew Bailey, who was installed in September but has been unseen aside from comments on public corruption a few days ago — has a plan to pull together the investigative work done in various places, to present it to a grand jury in Trump’s current residence, under a theory that some group of meanies have been conspiring against Trump for a decade.

For example, the 302 reports of interviews tied to a WDVA investigation, conducted in attorneys’ offices, might be presented in January to the SDFL grand jury.

[A] host of former F.B.I. officials voluntarily sat for interviews, according to people familiar with the matter.

Witnesses in the case were questioned by a combination of civil lawyers — not criminal prosecutors — from the Western District of Virginia, as well as criminal prosecutors from the neighboring Eastern District of Virginia and F.B.I. agents. To reassure witnesses that they were not targets of the investigation, witnesses were allowed to be interviewed at their lawyers’ offices, rather than at government buildings.

The specious referral of John Brennan for lying? Sent to Florida as part of a claim it was a conspiracy to harm poor Donald Trump. Tulsi Gabbard’s inability to distinguish the DNC server from voting machines? Off to Florida, as if it were credible.

And, importantly, whatever material prosecutors obtained by using the frivolous EDVA Jim Comey prosecution as a pretext? Sent to Florida to be presented to a different grand jury in January to support a conspiracy indictment.

The attorney-client breach hints that the risk goes beyond this indictment

The need to assume that something like that is happening (wherever it might be located) is, I think, a better explanation for some of the motions Jim Comey filed than Ben Wittes’ theory that Comey is just stacking up ways to get this indictment dismissed.

It’s certainly possible that when Lindsey Halligan first rolled out one failed and one successful indictment, Comey and Patrick Fitzgerald thought this would be easy to defeat. This particular indictment, obtained by someone playacting as US Attorney, should be.

But almost immediately, the loaner AUSAs started trying to dick around, first trying to buy an extra week on discovery because Comey planned to submit two rounds of pretrial motions, then demanding that Comey have sharply limited access to the discovery.

More alarming still, on October 10, before handing over any discovery, prosecutors started pressuring Comey to adopt a filter protocol so they could access content seized from Dan Richman in 2020. When they submitted a request for such a filter team on October 13, they did not disclose — not publicly, at least — that the primary investigators on the team had already peeked at the privileged material. When they tried to accelerate that request for a filter team on October 19, they falsely claimed that Comey’s decision to share a memo about Donald Trump’s misconduct in 2017 implicated Fitzgerald in leaking classified information: “the defendant used current lead defense counsel to improperly disclose classified information.”

It’s not clear when prosecutors first told Comey that investigators had accessed his attorney-client privileged content, but the first time Comey’s team mentioned it (in redacted form) was in their response to that bid to accelerate the process of a filter team on October 20, almost a month after the indictment. Judge Nachmanoff’s order denying the government’s request to accelerate the process revealed some of what Comey had described under seal (making at least the first Comey filing a judicial record under Fourth Circuit law that someone could petition to liberate).

He also states that the underlying warrants were “obtained by prosecutors in a different district more than five years ago[,] in an investigation that closed without criminal charges[,] and [] authorized the seizure of evidence related to separate offenses that are not charged here.” Id. at 2. And, there is “reason to believe that the two principal FBI investigators may already have been tainted by exposure” to privileged information. Id. at 3.

When prosecutors filed that bid to accelerate getting access to Comey’s privileged communications, when they claimed that Fitzgerald committed a crime by receiving unclassified CYA memos documenting Trump’s misconduct from Comey (hinting that they want to access Comey’s privileged material by invoking a crime-fraud exception), it became clear this prosecution was just one prong of the larger witch hunt. And whenever it was that prosecutors first alerted Comey that they had snooped in his privileged communications, the claim that sharing unclassified memos documenting Trump’s misconduct was criminal was also the first hint that this “spill” was not an accident.

Indeed, the repeated invocation by the loaner prosecutors of Fed. R. Evid. 502(d) to suggest that a waiver of privilege here, in the EDVA case, would not waive privilege somewhere else (which is the opposite of how they’re treating material seized from Dan Richman — they’re treating his successful invocation of privilege five years ago as waiver here)…

Fed. R. Evid. 502(d) (providing that a court may “order that [a] privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.”)

…. May be a confession in the opposite world of Trump’s DOJ that they’ve already gotten access via a claim of crime-fraud exception somewhere else and need a waiver here to introduce it at trial.

Someone helped themselves to this content (possibly with the assistance of a Trump-installed judge), and that someone seems to imagine it was a crime for Jim Comey to reveal Trump’s misconduct in 2017, an act that is not directly implicated in either the existing charges or the no-billed one but would be foundational to the fever dreams of a conspiracy against rights case.

The intersecting investigations

This is probably a good time to review all the investigations Republicans are drawing on here, which I’ve summarized in this table (I’m just including DOJ and DOJ IG investigations; there are also some Congressional investigations that generally were riddled with logical and evidentiary problems).

There are three Senate exchanges with Comey at issue in his prosecution.

First, there’s the questions Chuck Grassley asked on May 3, 2017 that Ted Cruz invoked when he asked the questions at issue in the indictment.

SEN. GRASSLEY: Director Comey, have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?

MR. COMEY: Never.

SEN. GRASSLEY: Question two on [sic] relatively related, have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation?

MR. COMEY: No.

By context, this was a general question (and as such it could include Item B in the table). Grassley probably imagined it included questions like, Did Comey (or anyone he authorized) leak details of his briefing to Trump about the Steele dossier? Did Comey (or anyone he authorized) leak details on the intercepts capturing Mike Flynn undermining sanctions? Did Comey (or anyone he authorized) leak details about the Clinton investigation, possibly including the Russian disinformation that led him to make the prosecutorial decision on it.

One thing Chuck Grassley’s question could not have referred to were the memos documenting Trump’s misconduct, Item D, because Comey only shared them with Dan Richman after Trump fired Comey on May 9, six days later. Even if Comey did authorize Richman to share them (he did, but the terms on which he did so are likely contested), he had not shared them yet, when he answered this question. Per the IG Report on this topic, Comey shared the memos first with Fitzgerald on May 14, 11 days after Grassley’s question, then shared just one memo with Richman on May 16, two days later, the NYT story on the memo came out that day, May 16.

Then there’s Andrew McCabe’s rebuttal of details about the Clinton Foundation, which was the explicit topic of Ted Cruz’ questions on September 30, 2020 and the alleged lie charged (but miscited) in the indictment.

SEN. CRUZ: On May 3, 2017 in this committee, Chairman Grassley asked you point blank “have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?” You responded under oath “never.” He then asked you “have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton administration.” You responded again under oath, “no.” Now, as you know, Mr. McCabe, who works for you, has publicly and repeatedly stated that he leaked information to The Wall Street Journal and that you were directly aware of it and that you directly authorized it. Now, what Mr. McCabe is saying and what you testified to this committee cannot both be true; one or the other is false. Who’s telling the truth?

MR. COMEY: I can only speak to my testimony. I stand by what, the testimony you summarized that I gave in May of 2017.

SEN. CRUZ: So, your testimony is you’ve never authorized anyone to leak. And Mr. McCabe when if he says contrary is not telling the truth, is that correct?

MR. COMEY: Again, I’m not going to characterize Andy’s testimony, but mine is the same today. [my emphasis]

A footnote in Comey’s literal truth motion describes the agreed-upon scope of the September 30, 2020 hearing, which included neither the Clinton email nor the Clinton Foundation investigation, so Cruz’ question, to the extent it pertained to McCabe, was fundamentally out of scope for the hearing and therefore could not be claimed to be addressing material to the topics of the hearing.

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.

If this ever gets to trial there will be about fifty ways to prove that Comey’s answer to this question could not be material to what the Senate imagined it was doing.

But to use Cruz’ poorly worded questions to charge Comey, Halligan applied it to the Dan Richman stuff.

Since Halligan claims this about Hillary (which, again, was not material to the hearing), she must be applying it to Item B, the only one of these items known to include both Richman and Hillary, the SVR memos claiming that Loretta Lynch was helping Democrats deal with the Hillary investigation (and also claiming that Jim Comey was going to make the Hillary investigation right up until election day, which he in fact did).

Even then, there’s a problem for both known stories attributed to Richman. For the earlier one — the one that could be included in the scope of Grassley’s question and which is the most obvious story addressed in the indictment — Richman was not anonymous. Mike Schmidt quoted him three times in that story.

“Jim sees his role as apolitical and independent,” said Daniel C. Richman, a longtime confidant and friend of Mr. Comey’s. “The F.B.I. director, even as he reports to the attorney general, often has to stand apart from his boss.”

[snip]

Confidants like Mr. Richman say he was constrained by circumstance while “navigating waters in which every move has political consequences.”

[snip]

Mr. Richman sees no conflict, but rather “a consistent pattern of someone trying to act with independence and integrity, but within established channels.”

“His approach to the Russia investigation fits this pattern,” he added.

Richman was anonymous in the Comey memo story, but he was also no longer at the FBI when he shared it.

Finally, there’s the question Lindsey Graham asked on September 30, 2020, which was the subject of the failed charge in the no-billed indictment, Item C.

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.

This question was based off the redacted version of a CIA memo addressed to, but not provably sent to the FBI, in 2016. The redaction almost certainly hides critical details about the memo to say nothing of details that should have led everyone to realize they were based on an SVR fabrication. As such, Graham’s question asked Comey not about the memo as it would have been perceived if it actually were received by FBI in 2016 (something John Durham was never able to prove), but a memo that Kash Patel retconned after the fact. Even if FBI did receive the memo, Comey would not recognize it as Graham described it.

This, along with Comey’s decision to share his CYA memos, which led to the appointment of Robert Mueller as Special Counsel, are the crown jewels of the fevered conspiracy against rights conspiracy theory.

Right wingers claim to believe that the FBI had reason to know that Hillary wanted to frame Donald Trump in 2016, and so when “she” shared information with the FBI — the Steele dossier and the Alfa Bank anomalies, though Hillary didn’t share the Steele dossier and affirmatively did not authorize sharing the Alfa Bank anomalies — the FBI should not have investigated them (which, in the case of Alfa Bank, they barely did, because they assumed Hillary was trying to frame Trump!). Right wingers claim to believe that the Steele dossier was central to the investigation of Donald Trump and the claim that Russia wanted to help Trump get elected. And they claim to believe Comey broke the law by sharing his own CYA memo of Trump. None of that is true. But that’s now become an object of faith in the cult of Donald Trump. And that’s why this investigation into Comey is critical to any investigation going on somewhere else.

Lindsey Halligan did not, overtly, charge either one of those things — the inaccurately redacted reference to an SVR fabricated memo alleging a Clinton Plan or Richman’s anonymous sharing of the Comey memos with Mike Schmidt. But that is why the vague language in Count Two of the existing indictment — and the loaner AUSAs’ claim that sharing the memo was a crime — is such a problem.

On or about September 30,2020, in the Eastern District ofVirginia, the defendant, JAMES B. COMEY JR. did corruptly endeavor to influence, obstruct and impede the due and proper exercise of the power of inquiry under which an investigation was being had before the Senate Judiciary Committee by making false and misleading statements before that committee.

Halligan couldn’t get the jury to indict Comey for the Lindsey Graham question. But the Lindsey Graham question was material to the topic of the hearing, and central to the fever dream. So it’s possible she used the charged alleged lie about Andy McCabe that Halligan is already overtly applying to Dan Richman as a way to get the grand jury to approve an obstruction case that would feed the fever dream.

That is, referring back to my table above, it’s likely Halligan used an out-of-scope question about Item A to charge Item B so as to create a prosecution for Items C and D.

Comey’s motions are necessary to this case, but also serve to stave off more

All that makes clear why two of the motions Comey filed Thursday are necessary. One — a motion to dismiss based on literal truth — arises from the shoddiness of the questions Ted Cruz asked; it was the only one that Fitzgerald mentioned at the arraignment.

The two others — one asking to obtain grand jury transcripts and another asking for a Bill of Particulars — are necessary to pin down whether the charged lie (which by description should be Item B on the table, even though Richman was not anonymous in the story in question) are actually what she got a grand jury to indict, whether that is the basis for the obstruction charge, and whether what Halligan said in the grand jury matches what the loaner AUSAs (who took several days before they’d even tell Comey who the people referred to in the indictment were) imagine they’ll present to a jury at trial.

Here’s how Comey describes the possibility of head fakes at trial in the Bill of Particulars motion.

Count Two charges Mr. Comey with “making false and misleading statements” at a four-hour hearing in which he was questioned on topics ranging from the FBI’s Crossfire Hurricane investigation, to the investigation into Hillary Clinton’s alleged mishandling of classified information, to white supremacist activities in the United States. Under the indictment as written, the government could wait until trial to specifically allege that any one, or several, of Mr. Comey’s statements over a four-hour hearing forms the basis for its prosecution. The government could also wait until trial to select any topic of investigation covered at the hearing as the one Mr. Comey allegedly endeavored to obstruct, and unfairly surprise Mr. Comey.

And here’s how he raised it in his bid to get grand jury transcripts.

Disclosure of the grand jury materials is also required to ensure that the government does not seek to try Mr. Comey for alleged false or misleading statements that differ from those on which the grand jury was asked to indict. See Russell v. United States, 369 U.S. 749, 765 (1962).

But there’s also the possibility that to pull off this trick — using an out-of-scope question about Item A to charge Item B — Halligan relied on privileged content.

When DOJ investigated Richman from 2019 to 2021 as the source for Mike Schmidt, they never found proof that Comey authorized him to share that information, details of the SVR content making false claims about the investigation into Hillary Clinton. But when DOJ IG investigated Comey in 2019 about his memos, he told them that he authorized Richman to share the memo about Trump.

May 14, 2017

Comey sends scanned copies of Memos 2, 4, 6, and 7 from his personal email account to the personal email account of one of his attorneys, Patrick Fitzgerald. Before sending, Comey redacts the second paragraph from Memo 7 involving foreign affairs because Comey deems it irrelevant. On May 17 Fitzgerald forwards these four Memos to Comey’s other attorneys, David Kelley and Richman.

May 16, 2017

Comey sends a digital photograph of Memo 4 (describing the meeting in which Comey wrote that President Trump made the statement about “letting Flynn go”) to Richman via text message from Comey’s personal phone. Comey asks Richman to share the contents, but not the Memo itself, with a specific reporter for The New York Times. Comey’s stated purpose is to cause the appointment of a Special Counsel to ensure that any tape recordings that may exist of his conversations with President Trump are not destroyed. Richman conveys the substance of Memo 4 to the reporter. The New York Times publishes an article entitled “Comey Memo Says Trump Asked Him to End Flynn Investigation.”

So there are communications between Comey and Richman (and possibly Fitzgerald) from May 2017 authorizing him to share information with Mike Schmidt. They’re almost certainly in the batch of stuff Richman said was privileged in 2020.

And that’s the kind of thing that might lead a grand jury to believe that Comey authorized Richman’s earlier conversations with Schmidt. Neither would match the details of Cruz’ question. Richman was still at the FBI when he was the source for Item B, but not anonymous. Richman was anonymous when he was the source for Item D, but he was no longer at the FBI (in any case, Comey notes in his literal truth motion that Richman “was a Special Government Employee living fulltime in New York”). But you could see how grand jurors might get that confused. Or, you could see how someone already breaking every rule of legal ethics would wildly conflate all of that.

And that’s part of what Comey is pursuing with his bid to obtain the grand jury transcripts: he suggests that Special Agent Miles Starr may have accessed attorney-client information before presenting to the grand jury.

[T]he agent who served as a witness in the proceedings may have been exposed to Mr. Comey’s privileged communications with his attorneys and thus may have conveyed that information to the grand jury.

Redacted passages describe that that same day he likely presented to the grand jury, FBI Agent Miles Starr, “alerted the FBI Office of the General Counsel” something redacted “involving Mr. Comey and his attorneys,” which suggests — Comey argues — that Starr was apparently aware “of his potential exposure to privileged material” when serving “as a witness presenting evidence to the grand jury in this case.”  Which, in turn, supports Comey’s hypothesis that Starr used privileged information to get the indictment.

Third, the record suggests that an FBI agent who testified before the grand jury was potentially tainted by privileged communications between Mr. Comey and his attorneys, one of whom was likely Mr. Richman, yet the agent still proceeded to testify in front of the grand jury. There is thus a serious concern that the grand jury may have improperly relied on privileged information.

[snip]

That information apparently related to certain attorneys for Mr. Comey, including Mr. Richman. See id. Nevertheless, the agent testified before the grand jury that same day, and given the content of the resulting indictment, it is clear that his testimony must have referenced Mr. Comey’s interactions and communications with Mr. Richman. This created a high risk that privileged information was presented to the grand jury by a tainted case agent.

If that were true — if Starr relied on information obtained without a warrant specific to the crimes under investigation — then Comey would have a Fourth Amendment challenge to the entire thing.

Fighting a battle in December to win a fight in October

Comey has a clear need for more clarity about whether they’re going to pull a headfake. But one reason I suspect this is not the only reason to seek that clarity has to do with timing.

Consider this comment in his request for grand jury materials, which argues he needs the grand jury materials to adjudicate his vindictive prosecution motion (just a page and a half of which asks for discovery).

For similar reasons, disclosure of the grand jury materials is reasonably calculated to provide additional support for Mr. Comey’s argument that he would not have been prosecuted but for President Trump’s animus toward Mr. Comey, including because of his protected speech. See generally Mot. to Dismiss Indictment Based on Vindictive & Selective Prosecution, ECF No. 59. Objective evidence establishes that the President harbors such animus—he has spent the last eight years publicly attacking Mr. Comey’s speech and character and calling for Mr. Comey to be prosecuted. See id. at 4-8. The record also shows that President Trump “prevailed upon [Ms. Halligan] to bring the charges . . . such that [she] could be considered a ‘stalking horse.’” See id. at 21-22 (citing United States v. Sanders, 211 F.3d 711, 717 (2d Cir. 2000)). In turn, the government’s manipulation of the prosecutorial process, including its repudiation of the views of every career prosecutor who assessed the case, makes clear that Mr. Comey would not have been prosecuted but for President Trump’s animus. Id. at 22-26.

Although dismissal of the indictment is warranted on the record as it stands, disclosure of the grand jury materials would bolster Mr. Comey’s arguments. Having served as his personal attorney and as a White House Official, Ms. Halligan has a close, longstanding relationship with President Trump. Id. at 11-12. And even though Ms. Halligan lacks prosecutorial experience, President Trump appointed her for the specific purpose of bringing this prosecution against Mr. Comey and other perceived political opponents. Id. at 23-24. Accordingly, there is a substantial risk that during her presentation to the grand jury, Ms. Halligan made statements that would support Mr. Comey’s motion to dismiss. Such “irregularities in the grand jury proceedings” would “create a basis for dismissal of the indictment” and thus warrant disclosure of the grand jury materials. Nguyen, 314 F. Supp. at 616 (citations omitted).

According to the current schedule, the hearing on this motion will be November 19. The request for grand jury transcripts won’t be fully briefed until one day later, and the hearing for it will take place after a Thankgiving break, on December 9.

This case could be — is likely to be, at least based on a disqualification of Lindsey Halligan — over by December 9.

Similarly, Comey asks for a Bill of Particulars to help wade through both the discovery he got and the stuff he did not get.

The discovery produced to date does not “fairly apprise [Mr. Comey] of the charges against him so that he may adequately prepare a defense and avoid surprise at trial.” Sampson, 448 F. Supp. 2d at 696 (cleaned up). The government produced voluminous discovery that includes some, but not all, documents from multiple different FBI investigations involving multiple districts.

[snip]

A bill of particulars can also be necessary to allow the defendant to request materials under, and the court to monitor the government’s compliance with, Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. See United States v. Trie, 21 F. Supp. 2d 7, 25 (D.D.C. 1998) (noting that the scope of the government’s Brady obligations could be determined “once it has provided the bill of particulars”).

[snip]

Accordingly, without knowing whether, and how, Mr. Richman allegedly acted as an anonymous source, Mr. Comey cannot ascertain whether the government has fulfilled its obligations under Brady. See Trie, 21 F. Supp. 2d at 26. For example, if the government contends that Mr. Richman acted as an anonymous source in the articles that were the subject of the “Arctic Haze” investigation, the defense would request that entire investigative file (which has not been produced), as well as information about all other individuals the government identified as possible sources of information (which has also not been produced). 5 Such materials would enable the defense to demonstrate—as government investigators previously found, see Mot. to Dismiss Indictment Based on Vindictive & Selective Prosecution, ECF No. 59 at 9-10—that there was insufficient evidence to believe that Mr. Richman was the source of that information. By contrast, if instead the government contends that Mr. Richman was authorized to act as a source in a different article, the defense could tailor both its Brady requests and trial defense accordingly. The defense should not be required to dig through tens of thousands of pages of incomplete discovery to guess at what it is defending against—only to be sandbagged by the government at trial.

Comey’s point about the Arctic Haze investigation is of particular note, given that DOJ chose only to pursue potential sources who would protect Comey, not those who would not, and Richman claimed that Mike Schmidt, who wrote that article with several other journalists, already knew a bunch about the SVR documents before asking him about it.

After discussing the status of investigative leads and resources available with the U.S. Attorney’s Office and Department of Justice’s National Security Division (DOJ NSD), the FBI investigative team was directed to interview only those officials who might have had a motive to protect Comey. Therefore, the FBI only interviewed eight of these officials who consisted mainly of former FBI officials.

Given a delay in Fitzgerald getting clearance, a Bill of Particulars might help him make the case to unseal classified information he won’t delay until that time. But any Brady violations discovered after getting one, if this motion succeeds, would also come after this case might be over.

But what these filings may do — especially the grand jury one — is affect several things going on, starting this week.

As noted, Judge Cameron McGowen Currie has ordered the government to give her the transcripts from both grand juries by tomorrow.

The undersigned has been appointed to hear this motion and finds it necessary to determine the extent of the indictment signer’s involvement in the gra.nd jury proceedings. Accordingly, the Government is directed to submit, no later than Monday, November 3, 2025, at 5:00 pm, for in camera review, all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.

It’s genuinely unclear why she needs them, but it’s possible that by laying out Comey’s concern about privileged material in the grand jury, that will affect Judge Currie’s review.

Comey noted that Currie had already asked for these transcripts (which Nachmanoff surely noticed, since she did so in his docket).

Indeed, Judge Currie has already ordered the government to produce for in camera review “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.” ECF No. 95. Mr. Comey has argued that if Ms. Halligan alone secured and signed the indictment, dismissal would be required because she was unlawfully appointed.

Comey will not prevail on his motion for the grand jury transcripts until after the vindictive prosecution motion is briefed. But there’s nothing to stop Nachmanoff from making the same request that Currie did, to receive the transcripts for in chambers review. Similarly, there’s nothing to prevent William Fitzpatrick, the Magistrate Judge who’ll hold a hearing on the privilege question this Wednesday, to do the same.

But there’s one other way to think about this. If this prosecution continues as scheduled (as noted, Comey just asked for a delay in the CIPA schedule until Fitzgerald is cleared, which makes that a very big if), then the trial would happen — to much media attention — one week before this grand jury is seated in January.

Prosecutors are currently trying to preserve asymmetry in knowledge, withholding parts of these investigative files and remaining coy about how they snuck a peek in his privileged communications.

But on top of the necessary information these motions would give him to prepare for trial, they also erode that asymmetry, in ways that may help defeat not just this prosecution, but the larger fever dream one.

Relevant links

DOJ IG Investigation into McCabe

DOJ IG Investigation into Hillary’s email and Classified Annex

DOJ IG Investigation into Comey’s Memos

Durham Report and Classified Annex

Redacted memo about “Clinton Plan”

Arctic Haze Investigation Documents

NYT, April 22, 2017: Comey Tried to Shield the F.B.I. From Politics. Then He Shaped an Election.

NYT, May 2016: Comey Memo Says Trump Asked Him to End Flynn Investigation

Timeline

September 25: Indictment

September 29: Guidance from FBI OGC regarding those exposed to tainted information

October 8: Arraignment; Comey signs but government does not return discovery order

October 13: Government moves for a filter protocol

October 15: Government first informs Comey the false statements charge is about Dan Richman and Hillary Clinton

October 19: Request to accelerate privilege review

October 20:

October 27:

October 28: Judge Cameron McGowan Currie orders prosecutors to submit: “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts”

October 29:

  • Judge Nachmanoff orders Magistrate Judge William Fitzpatrick to preside over filter review questions
  • Classified material delivered to SCIF; Fitzgerald can access just one-third of material

October 30:

November 2: Reply to motion for filter protocol

November 3:

  • Responses to first motions due
  • Grand jury transcripts due to Judge Currie

November 5: Filter review hearing before Magistrate Judge Fitzpatrick

November 10: Reply to first motions due

November 13:

  • Responses to second motions due
  • Motion hearing on motion to disqualify

November 19: Motions hearing for first motions

November 20: Reply to second motions due

December 4: Fitzgerald to be fully cleared, permitting his first full review of classified evidence

December 9: Motion hearing for second motions

December 18: Proposed new CIPA deadline

January 5: Jury trial

January 12: Fort Pierce grand jury convenes

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Kash’s “lockbox in a vault…in a cyber place where no one can see or search these files”

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There were two competing letters published yesterday designed to frame Kash Patel’s efforts to frame Democrats with being mean to Donald Trump, for which (the NYT reports) Trump wants to be paid $230 million. They are:

I’m a well-established critic of Lanny Breuer, but the letter is substantive and direct. After mocking Josh Hawley’s claim that he was “tapped,” the letter shows how toll records have been used in various other investigations:

  • The Robert Hur investigation of Joe Biden.
  • Charging documents in five different investigations charged since Kash has become FBI Director.
  • In leak investigations, targeting Adam Schiff, Eric Swalwell, and staffers (including Kash Patel).
  • The Robert Menendez investigation.

But all that’s just set up for this passage, mocking Kash for his claim, made on Sean Hannity’s show while he was wearing a ridiculous jacket, that Jack Smith was trying to hide his use of toll records in a “lockbox in a vault, and then put that vault in a cyber place where no one can see or search these files.”

[T]here is simply no support for FBI Director Patel’s recent assertion that Mr. Smith hid the toll records information so that “no one would find it,” or that Mr. Smith put the toll records in a “lockbox in a vault, and then put that vault in a cyber place where no one can see or search these files.”9 It is not clear what cyber place in a vault in a lockbox Director Patel is describing, but Mr. Smith’s use of these records is inconsistent with someone who was trying to conceal them. Paragraph 119 of the August 1, 2023 indictment describes some of the calls that were made to U.S. Senators on January 6, 2021, and footnote 132 of Volume 1 of the Special Counsel Report refers to the use of toll records in the investigation. Moreover, the precise records at issue were produced in discovery to President Trump’s personal lawyers, some of whom now serve in senior positions within the Department of Justice.

9 HANNITY: Patel: “We’re Just Warming Up” in Investigation of Alleged Tracking of GOP Senators, Fox News (Oct. 7, 2025), https://www.foxnews.com/video/6382234662112.

Even without this letter, sentient beings were able to point to the place in the indictment and the Jack Smith report where these toll records were described. And, as the letter notes, Trump’s attorneys — including Todd Blanche — got discovery on those toll records years ago, but did not challenge their use in a criminal case.

All this was quite clear to sentient beings. But not the staffers exploiting Chuck Grassley’s diminished capacities to make a stink about something very ordinary.

By comparison, the Jordan letter is shoddy even by his standards.

The ostensible purpose is to refer John Brennan to DOJ (but, significantly, not FBI) for testimony Brennan gave — in a hearing about the letter truthfully saying a bunch of spooks thought the Hunter Biden laptop had the hallmarks of a Russian information op — that mentioned the Steele dossier in passing. This may be an effort to predicate a case in DC after the case in Philly has stalled, but anyone aware of the law would question how comments about the Steele dossier were material to a hearing about the Hunter Biden letter, a point that Brennan even made at the time: “I don’t see any relevance to the Hunter Biden laptop issue now,” as quoted in Jordan’s letter.

More importantly, the letter appears to be an effort to launder debunked propaganda Kash Patel did years ago through Congress back into an investigation led by Kash Patel, something I’ve addressed in the past.

The key paragraph makes a number of claims, some of which are fabrications (and therefore commit the crime that Jim Jordan is referring), others of which are misrepresentations of prior reports that were themselves propaganda.

On January 6, 2017, the CIA, Federal Bureau of Investigation (FBI), and National Security Agency published a declassified version of an Intelligence Community Assessment (ICA) titled Assessing Russian Activities and Intentions in Recent US Elections. 3 The ICA stated, among other things, that Russia “developed a clear preference” for President Trump and “aspired to help” him win the election.4 This conclusion—now known to be false—was based in part on the Steele dossier, which “was referenced in the ICA main body text, and further detailed in a two-page ICA annex.”5 The Steele dossier was a series of reports containing baseless accusations concerning President Trump’s ties to Russia compiled and delivered to the FBI in 2016 by former British intelligence agent Christopher Steele.6 Subsequent investigations confirmed that the Clinton campaign and the DNC paid Steele via the law firm Perkins Coie and opposition research firm Fusion GPS to provide derogatory information about Trump’s purported ties to Russia, which resulted in the discredited dossier.7 In July 2025, the Trump Administration declassified numerous documents showing that the ICA’s main findings were false and that the Obama Administration knowingly fabricated the findings for the purpose of undermining the Trump Administration.8

3 OFF. OF THE DIR. OF NAT’L INTEL., ASSESSING RUSSIAN ACTIVITIES AND INTENTIONS IN RECENT US ELECTIONS (Jan. 6, 2017) [hereinafter “Russian Interference ICA”].

4 Id. at 1.

5 MAJORITY STAFF REPORT, H. PERM. SELECT COMM. ON INTEL., 116TH CONG., OVERSIGHT INVESTIGATION & REFERRAL: THE INTELLIGENCE COMMUNITY ASSESSMENT (ICA) “RUSSIA’S INFLUENCE CAMPAIGN TARGETING THE 2016 US PRESIDENTIAL ELECTION,” at 23 (2020) [hereinafter “HPSCI Report”].

6 See JOHN H. DURHAM, U.S. DEP’T OF JUST., OFF. OF SPECIAL COUNS., REPORT ON MATTERS RELATED TO INTELLIGENCE ACTIVITIES AND INVESTIGATIONS ARISING OUT OF THE 2016 PRESIDENTIAL CAMPAIGNS, at 11-12, 109-117 (2023) [hereinafter “Durham Report”].

7 See id. at 109-117; HPSCI Report, supra note 5, at 22-32; U.S. DEP’T OF JUST., OFF. OF THE INSPECTOR GEN., REVIEW OF FOUR FISA APPLICATIONS AND OTHER ASPECTS OF THE FBI’S CROSSFIRE HURRICANE INVESTIGATION, at v-xii (2019); Memorandum from HPSCI Majority Staff to HPSCI Majority Members, Re: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation (Jan. 18, 2018).

8 Sarah Bedford & Kaelan Deese, Russiagate definitive timeline: How new intelligence documents fit in, WASH. EXAM’R (July 26, 2025). [my emphasis]

The key claim in here — that what Jordan falsely says is the key claim of 2017 Intelligence Community Assessment, which he describes as, “that Russia ‘developed a clear preference’ for President Trump and ‘aspired to help’ him win the election,” is based on the Steele dossier — is based off two reports Kash substantially wrote (marked in blue). Never mind that it is only the key claim of the Intelligence Community Assessment if you have the thin skin of a Narcissist, never mind that any dispute is about how much evidence there was before discovering the June 9 meetings or Paul Manafort’s sharing of campaign information with Russian spies. That key claim had nothing to do with the subsequent investigation of Trump, which investigation had already been set into motion by Mike Flynn’s shitty OpSec.

But as I wrote extensively,  the one dated 2020, showing that Congressional Republicans packaged up older claims and Russian spycraft after the Mueller Report definitively showed the Russia did prefer Trump and Trump did welcome that help, is an attempt to create a time machine to go back to the halcyon time before we knew all that.

Jordan, perhaps wisely, doesn’t try to lay out how all this fits together. He outsources it to a right wing propaganda outlet, outsourcing to them their credulity about the time machine effect going on.

Jim Jordan lied, shamelessly, when he alleged that that claim was shown to be false. And he lied, shamelessly, when he said that a report that affirmatively did not incorporate intelligence from the Steele dossier, choosing instead to only link it and specifically say it was not incorporated into analytical work (which backs Brennan, not Jordan), instead relied on the dossier.

This conclusion—now known to be false—was based in part on the Steele dossier, which “was referenced in the ICA main body text, and further detailed in a two-page ICA annex.”

If the intimation that Kash Patel’s hand-picked investigators breached Jim Comey’s attorney-client privilege in service of this conspiracy bears out, it only adds to the list of corrupt and possibly illegal things Kash has done in pursuit of this witch hunt. And that’s before you consider all the cops and prosecutors that get fired along the way.

Kash Patel may well be in a race against time. He needs to package up things before Comey gets them all thrown out before Andrew Bailey becomes eligible to act as FBI Director bypassing confirmation, in mid-December.

Links

A Dossier Steal: HPSCI Expertly Discloses Their Own Shoddy Cover-Up

Think of the HPSCI Report as a Time Machine to Launder Donald Trump’s Russia Russia Russia Claims

Tulsi Gabbard and John Ratcliffe Reveal Putin “Was Counting on” a Trump Win

Tulsi Gabbard Teams Up with Russian Spies to Wiretap and Unmask Hillary Clinton

The Secrets about Russia’s Influence Operation that Tulsi Gabbard Is Still Keeping from Us

Tulsi Gabbard Accuses Kash Patel of Covering Up for the Obama Deep State

 

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A Summary of Kash Patel’s Disqualifications to Lead FBI

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I expect Kash Patel will be confirmed; I even expect that Democrats on the Senate Judiciary Committee will be utterly feckless in Kash’s confirmation hearing tomorrow.

Nevertheless I wanted to summarize his disqualifications.

Kash got where he is by substituting the Steele dossier for the real Russian investigation, which was instrumental in Trump’s success at minimizing the damage of one after another Trump associate lying about what really happened in 2016.

Kash gets a lot of credit for the Nunes Memo, with many right wingers claiming that the Horowitz Report vindicated it.

It didn’t. As I showed, both the Nunes Memo and the Schiff Memo got things right and got things wrong; mostly they just spoke past each other, which was fundamentally based on that substitution of the Steele dossier for the real Russian investigation.

Nevertheless, one of Kash’s lasting gripes (against Robert Hur) has to do with efforts to limit how much Kash was releasing at the time.

Kash did more than that as a House staffer, though. He continued to chase his conspiracy theories as Congress turned to criminalizing Hillary Clinton. He’s actually the staffer who asked the question that set up Michael Sussmann for a failed prosecution years later. He set up what would later become the Durham investigation — a four year effort to criminalize being victimized by a hostile nation-state.

And then, after Durham filed a wildly misleading court filing misrepresenting the discovery by some Georgia Tech researchers that someone was using a YotaPhone inside the Executive Office of the Presidency during the Obama term, Kash sent out a letter outright lying about the claims.

The whole thing is riddled with lies, but ultimately it amounts to a conflation of the Obama-era discovery with the discovery of the ties between a marketing server, Alfa Bank, and a Spectrum Health server. Kash’s letter was the final step before Trump jumped on the lies and called for Sussmann’s execution. Kash is a key cog in the way Trump has elicited threats against others.

Kash also paid a lot of former FBI agents who were disgruntled about having to investigate Trump supporters.

And when news of the discovery that boxes of documents that Trump had returned had classified documents in them, Kash invented a claim that Trump had declassified all those documents.

At least one Jack Smith witness — someone with the potty mouth of Eric Herschmann — disputes any claim there was a standing order to declassify documents. That witness described someone “unhinged” and “crazy” who first got access to the White House through the Member of Congress he worked for, who started the “declassified everything” claim when it first started appearing in the media, which is when Kash Patel made the claim.

Jack Smith described what happened next. When investigators subpoenaed Kash to test his claims that Trump had this standing order, Kash tried to delay compliance indefinitely by hiring a lawyer already busy defending a January 6 seditionist. When the aspiring FBI Director did first testify, Kash pled the Fifth repeatedly.

On Monday, September 19, 2022, the FBI personally served witness Kashyap “Kash” Patel with a grand jury subpoena, commanding him to appear on September 29, 2022. Prior to engaging with counsel, Patel contacted government counsel on Friday, September 23, 2022, to request a two-week extension. The government agreed to that extension and set his appearance for October 13, 2022. Thereafter, [Stan] Woodward contacted government counsel on September 27, 2022, explaining that he had just begun a lengthy jury trial–United States v. Rhodes et a., No. 22-cr-15 (D.D.C.)–but that Patel had retained him. On September 30, 2022, Woodward request an addition indefinite extension of Patel’s grand jury appearance until some point after the Rhodes trial concluded. (Ultimately, the verdict in the trial was not returned until November 29, 2022, approximately six weeks after Patel’s already-postponed appearance date of October 13, 2022.) The government was unwilling to consent to the indefinite extension that Woodward sought. Woodward, for his part, declined various alternatives offered by the government, including scheduling Patel’s grand jury appearance for Friday afternoons, when the Rhodes trial was not sitting, and a voluntary interview by prosecutors and agents over a weekend.

On October 7, 2022, Patel (through Woodward) filed a motion to quash his grand jury appearance, arguing that requiring Patel to appeal pursuant to the grand jury’s subpoena would violate his constitutional rights by depriving him of his counsel of choice, i.e., Woodward, who was occupied with a jury trial elsewhere in the courthouse. The Court denied the motion to quash on October 11, 2022, see In re Grand Jury No. 22-03 Subpoena 63-13, No. 22-gj-41, Minute Order (Oct. 11, 2022), and required Patel to appear as scheduled on October 13. See id. (“Mr Patel requests a delay of some unspecified time period in his testimony because his counsel, Stanley Woodward, will be engaged in the United States v. Rhodes trial, Case No. 22-cr-15, scheduled to last several weeks, with no promises as to when his counsel will still have time available. Mr. Patel retained Mr. Woodward on the attorney’s first day of jury selection in Rhodes when such circumstance made fully apparent that counsel would be unavailable during Mr. Patel’s scheduled grand jury testimony. In addition, the government has already demonstrated flexibility in meeting Patel’s scheduling needs . . . . Testifying before a grand jury is not a game of find-or-seek-a-better-time or catch-me-if-you-can, and a witness cannot indefinitely delay a proceeding based on his counsel’s convenience. . . .”).

Patel appeared before the grand jury on October 13, 2022, where he repeatedly declined to answer questions on the basis of the rights afforded to him by the Fifth Amendment. Thereafter, the government moved to compel Patel’s testimony. The Court granted the government’s motion to compel, contingent on the government offering statutory immunity. [my emphasis]

Aileen Cannon has buried any description of what Kash said when compelled to testify. This nomination should be held until any discussion of Patel in the Jack Smith report is released (but thus far Dick Durbin has shown no interest in doing so; DOJ just dropped their appeal).

But it should never be passed, because Kash is a menace. In his repeated efforts to falsely claim that January 6 defendants were treated any worse than any other mostly-violent pretrial detainees during the COVID period, he suggested that the people detained for assaulting cops were being mistreated.

As I have shown (and Bulwark did before me) Kash’s cheerleading for January 6 defendants amounts to arguing that someone accused of assaulting cops who grabs a gun when his probation officers show up should not then be jailed, nor should someone who directly threatened members of Congress, called on a mob to grab their weapons, and then assaulted cops.

Kash Patel will do and say anything to protect Trump and his flunkies — up to and including risking the safety of members of Congress.

Such a person would not serve as Director of FBI. He would serve as a means to turn government against Trump’s adversaries.

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Gravity and Trump’s Conspiracy Cabinet

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This paragraph, describing the role that aspiring FBI Director Kash Patel played in Trump’s video collaboration with a bunch of mostly-violent Jan6ers, appears about two thirds of the way through a very good NYT review of how Trump has rewritten the history of January 6.

Mr. Trump recorded his contribution at his Mar-a-Lago residence in Florida, while the choir was recorded with a phone in the Washington jail. The song — a fund-raising effort that the Trump loyalist Kash Patel, now the president-elect’s nominee to head the F.B.I., helped produce — concludes with a defiant echo of the “U.S.A.!” chants that resounded during the Jan. 6 attack.

Kash Patel has been central to the success of Trump’s repackaging of his own crimes as grievance from the start.

And I’ve been trying to figure out how that’ll work as I contemplate what I think of as Trump’s Conspiracy Cabinet.

I’ve been thinking of his nominations as a combination of a highly competent Christian nationalist core (led by Stephen Miller and Russ Vought), largely filled out with people who’ll be in the business of graft and other kinds of corruption — whether for their own benefit or Trump’s. But the most unpredictable element is how Trump plans to fill government with embodiments of the conspiracies that have become central to his movement.

That’s most evident in virtually of Trump’s health-related appointments, starting with Bobby Kennedy (who might yet lose his confirmation battle). I don’t, for a second, believe the claim from someone adjacent to Roger Stone that Trump picked RFK and Tulsi Gabbard as a way to tap into a realignment of Democrats. Rather, Trump had to appoint them to keep the likes of Matthew Livelsberger , who invoked RFK in his manifesto, engaged, no matter the cost. And so after having presided over a heroic rush to develop a COVID vaccine in his first term, Trump will hand over America’s scientific crown jewels to people who don’t believe in science.

What will happen when these conspiracists confront the immutable laws of science? What will happen when gravity hits?

And how many children will die as a result?

The damage that Tulsi will be able to do (again, her confirmation is not assured) at National Intelligence is more measurable. US intelligence has been politicized for years. Forever. Such politicization as often as not cause self-perpetuating scandal cycles. And if not, Bad Things will likely result that will harm the US and lead to avoidable catastrophes that Trump should own.

It’s the damage posed by Kash’s likely installation at FBI — he has a better shot at confirmation than either RFK or Tulsi — that I can’t fully grok.

Back in the halcyon days of the Durham investigation, I came to believe that gravity would defeat these grievance myths, would defeat the kinds of conspiracies Kash sows, too. Even with Durham, Kash helped facilitate the false claims Durham spun out of theories of conspiracy hung on two false statements indictments. A key prong of the Sussmann prosecution — into what he said to the CIA in January 2017 — arose out of a question Kash somehow knew to ask on December 18, 2017. Then, after Durham deliberately misrepresented legitimate intelligence that Georgia Tech discovered dating to the Obama Administration to insinuate that Trump had been spied on, Kash made a number of unhinged claims to expand on Durham’s already false claim.

But the oddest statement came from “Former Chief Investigator for Russia Gate [sic]” and current key witness to an attempted coup, Kash Patel, sent out by the fake Think Tank that hosts some of the former Trumpsters most instrumental in covering up for Trump corruption.

Taken literally (which one should not do because it is riddled with false claims), the statement is a confession by Kash that he knew of what others are calling “spying” on Trump and did nothing to protect the President.

Let’s start, though, by cataloguing the false claims made by a man who played a key role in US national security for the entirety of the Trump Administration.

First, he claims that the Hillary Campaign, “ordered … lawyers at Perkins Coie to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia.” Thus far, Durham has made no claims about any orders coming from the Hillary Campaign (and the claim that there were such orders conflicts with testimony that Kash himself elicited as a Congressional staffer). The filing in question even suggests Perkins Coie may be upset about what Sussmann is alleged to have done.

Latham – through its prior representation of Law Firm-1 – likely possesses confidential knowledge about Law Firm-1’s role in, and views concerning, the defendant’s past activities.

In fact, in one of the first of a series of embarrassing confessions in this prosecution, Durham had to admit that Sussmann wasn’t coordinating directly with the Campaign, as alleged in the indictment.

Kash then claims that “Durham states that Sussmann and Marc Elias (Perkins Coie) … hired .. Rodney Joffe … to establish an ‘inference and narrative’ tying President Trump to Russia.” That’s false. The indictment says the opposite: Joffe was paying Perkins Coie, not the other way around. Indeed, Durham emphasized that Joffe’s company was paying Perkins Coie a lot of money.  And in fact, Durham shows that the information-sharing also went the other way. Joffe put it together and brought it to Perkins Coie. Joffe paid Perkins Coie and Joffe brought this information to them.

Kash then claims that “Durham writes that he has evidence showing Joffe and his company were able to infiltrate White House servers.” Kash accuses the Hillary Campaign of “mastermind[ing] the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President.” This betrays either real deceit, or ignorance about the most basic building blocks of the Internet, because nowhere does Durham claim that Joffe “infiltrated” any servers. Durham, who himself made some embarrassing technical errors in his filing, emphasizes that this is about DNS traffic. And while he does reveal that Joffe “maintain[ed] servers for the EOP,” that’s not infiltrating. These claims amount to a former AUSA (albeit one famously berated by a judge for his “ineptitude” and “spying”) accusing a conspiracy where none has been charged, at least not yet. Plus, if Joffe did what Kash claims starting in July 2016, as Kash claims, then Barack Obama would be the one with a complaint, not Trump.

Finally, Kash outright claims as fact that Joffe “exploited proprietary data, to hack Trump Tower and the Eisenhower Executive Office Building.” This claim is not substantiated by anything Durham has said and smacks of the same kind of conspiracy theorizing Louise Mensch once engaged in. Only, in this case, Kash is accusing someone who has not been charged with any crime — indeed, a five year statute of limitation on this stuff would have expired this week — of committing a crime. Again: a former AUSA, however inept, should know the legal risk of doing that.

Curiously, Kash specifies that the White House addresses involved were in the Eisenhower Executive Office Building. That could well be true, but Durham only claims they were associated with EOP, and as someone who worked there, Kash should know that one is a physical structure and the other is a bureaucratic designation. But to the extent Kash (who has flubbed basic Internet details already) believes this amounted to hacking the EOP, it is based off non-public data.

So, like I said, the piece is riddled with false claims, but with two claims that go beyond anything Durham has said.

This one-two punch — first Durham misrepresenting evidentiary claims and then Kash spinning Durham’s misrepresentations free of all mooring — resulted in Trump making death threats targeting Sussmann and an entire campaign targeting Rodney Joffe.

But in the end, even though Durham’s lawyers repeatedly defied Judge Christopher Cooper’s orders, they ultimately mostly failed to present the theory of conspiracy they had about Sussmann’s alleged false statement. Sussmann, after paying superb lawyers a bunch of money, having his career disrupted, and facing death threats ginned up by the former President, was acquitted.

The process worked, but not before a great many people’s lives were upended, irrevocably.

So even though only NYT joined me, in exposing the degree to which a theory of conspiracy, and not any real evidence, lay behind Durham’s insinuations of guilt, even though the legacy media chased Durham’s theory of conspiracy hook line and sinker, I at least believed that the system would work.

The Hunter Biden prosecution has disabused me of that faith. Between the fact that Hunter really did evade taxes — the presence of a crime that could substitute for all the unsubstantiated claims about him — and the way a multi-year revenge porn campaign solidified the legacy media belief he was too icky for due process, prosecutors continue to make outlandish claims with little pushback, much less curiosity about why a witness to a crime is overseeing the investigation into it.

As FBI Director Kash will have the ability to do what he did in advance of the Sussmann hearing, find some nugget, tangential to any topic at hand, on which to hand a larger conspiracy theory.

Amid all the focus on Trump naming his defense team to run DOJ, there has been little focus on the fact that Emil Bove, whom he named to PADAG (even though the position doesn’t require confirmation and once confirmed as DAG, Todd Blanche could presumably put anyone he wants in the position), presided over a serious discovery violation scandal at SDNY, which forced him out of DOJ. If judges continue to hold DOJ to already weak discovery requirements, due process might survive. But if DOJ institutionally permits prosecutors to ignore their ethical guidelines, it will become far, far easier to frame defendants.

And the press has simply stopped reporting on due process, choosing instead to chase whatever dick pics propagandists unpack in front of them.

Kash Patel earned his nomination to be FBI Director by being the self-described wizard of Trump’s grievance myth. He has done such a tremendous job spinning that myth that even some good faith Republican Senators believe that myth as true.

And while I’m sure that gravity will eventually catch up to RFK Jr, as it did in Samoa, while I have every expectation to continue doing what I do, if only to witness further assaults on due process, I’m far less sanguine about gravity’s effect on a Kash-run Bureau.

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Judge Merchan’s Half Baby

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Judge Merchan has rejected Trump’s challenges to his conviction in the New York hush money case and scheduled a sentencing for January 10. But he has intimated he will sentence Trump to an unconditional discharge — meaning he won’t serve a jail sentence or probation.

In my opinion, this is a tactical decision and like every other legal decision about Donald Trump, unsatisfying and inadequate.

I think Merchan is trying to affirm the import of the jury’s guilty verdict, while daring Trump to ask for more.

The tradeoff I think Merchan is making is that by giving Trump nothing tangible to lose except his claim to innocence, he nevertheless situates the case in such a way that Trump can appeal.

But Merchan did so while weighing the record in favor of judicial independence.

After affirming the seriousness of Trump’s crime and the evidence against Trump (the first of ten “Clayton Factors” Merchan was obliged to consider given Trump’s request he just make the case go away), Merchan next addressed Trump’s claim that his contributions to society say he should escape punishment.

Merchan used that factor to discuss Trump’s attacks on Courts and Rule of Law. Among the items Merchan listed was the need to gag Trump; he noted, too, that even the Supreme Court backed his decision.

Defendant argues that his “contributions to this City and the Nation are too numerous to count,” and concludes his argument under this section by referencing two NY Supreme Court cases which are entirely distinguishable.T Defendant’s Motion at pg. 59. This Court agrees that Defendant served his country as President and will do so again in a matter of weeks. However, that service is but one of the considerations to weigh under this factor.

Despite Defendant’s unrelenting and unsubstantiated attacks against the integrity and legitimacy of this process, individual prosecutors, witnesses and the Rule of Law, this Court has refrained from commenting thereon unless required to do so as when ruling on motions for contempt of court. However, Defendant, by virtue of the instant motion, directly asks this Court to consider his character as a basis to vacate the jury verdict, and this Court must do so in accordance with the requirements of CPL section 210.40(1)(d).

Defendant’s disdain for the Third Branch of government, whether state or federal, in New York or elsewhere, is a matter of public record. Indeed, Defendant has gone to great lengths to broadcast on social media and other forums his lack of respect for judges, juries, grand juries and the justice system as a whole. See People’s Response at Section IV. C. In the case at bar, despite repeated admonitions, this Court was left with no choice but to find the Defendant guilty of 10 counts of Contempt fot his repeated violations of this Court’s Order Restricting Extrajudicial Statements (“Statements Order”), findings which by definition mean that Defendant willingly ignored the lawful mandates of this Court. An Order which Defendant continues to attack as “unlawful” and “unconstitutional,” despite the fact that it has been challenged and upheld by the Appellate Division First Department and the New York Court of Appeals, no less than eight times. Indeed, as Defendant must surely know, the same Order was left undisturbed by the United States Supreme Court on December 9,2024. [citation]. Yet Defendant continues to undermine its legitimacy, in posts to his millions of followers. Indeed, this is not the only instance in which Defendant has been held in contempt or sanctioned by a Court.8 Defendant’s character and history vis-a-vis the Rule of Law and the Third Branch of government must be analyzed under this factor in direct relation to the result he seeks, and in that vein, it does not weigh in his favor.

8 For example, Defendant has been held in contempt by courts within this jurisdiction and sanctioned by others. People of the State of New York v. The Trump Organizotion, Inc., No. 451G851202O [citation] (“Frivolous lawsuits should not be used as a vehicle for fundraising or fodder for rallies or social media. Mr. Trump is using the courts as a stage set for political theater and grievance. This behavior interferes with the ability of the judiciary to perform its constitutional duty) [my emphasis]

Trump claimed he was too important to sentence. Judge Merchan responded that Trump has undermined the Courts at every level.

And then he noted that the Supreme Court had backed him, Merchan, in defending the sanctity of his court.

That’s not the only legal issue Merchan highlighted as important. Merchan also noted Trump’s claim to President-elect or retroactive immunity.

Defendant presents this Court with the novel theory of President-elect immunity as it applies to [citation], arguing that such immunity presents a “legal impediment to conviction.” For the reasons stated above, this Court remains unpersuaded that President-elect immunity is the law and thus, neither that doctrine, nor the Supremacy Clause or Presidential Transition Act present a legal impediment to imposition of sentence. Alternatively, Defendant seeks, in essence, a form of retroactive immunity. Both of these theories are briefly addressed below.

Essentially, what Defendant asks this Court to do is to create, or at least tecognize, two types of Presidential immunity, then select one as grounds to dismiss the instant matter. First, Defendant seeks application of “President-elect immunity,” which presumably implicates all actions of a President-elect before taking the oath of office. Thus, he argues that since no sitting President can be the subject of any stage of a criminal proceeding, so too should a President-elect be afforded the same protections. Defendant’s Motion at pg. 35. Second, as the People characterize in their Response, Defendant seeks an action by the Court akin to a “retroactive” form of Presidential immunity, thus giving a defendant the ability to nullify verdicts lawfully rendered prior to a defendant being elected President by virtue of being elected President. It would be an abuse of discretion for this Court to create, or recognize, either of these two new forms of Presidential immunity in the absence of legal authority. The Defendant has presented no valid argument to convince this Cout otherwise. Binding precedent does not provide that an individual, upon becoming President, can retroactively dismiss or vacate prior criminal acts not does it grant blanket Presidential-elect immunity. This Court is therefore forbidden from recognizing either form of immunity.

Merchan is right: these are garbage theories. Theories that even most of SCOTUS would reject.

And that may be why Merchan adopted his wildly unsatisfying approach to sentencing. First, he rejected Alvin Bragg’s bid for an Alabama Rule because it would not permit Trump ability to appeal — to appeal his retroactive immunity claims, to appeal his claim about judicial prerogatives. Similarly, Merchan declined to just hold the sentence in abeyance unless he was unable to sentence Trump.

This Court has considered and now rejects the People’s suggestion that it adopt the “Alabama Rule” which would preserve the jury verdict while terminating the proceedings as such a remedy would deny Defendant the pathway he needs to exhaust hrs appellate rights.

The Court has also considered the People’s alternative proposal of holding sentence in abeyance until such time as Defendant completes his term of Office and finds it less desirable than imposing sentence prior to January 20, 2025. The reasons are obvious. However, if the Court is unable to impose sentence before Defendant takes his oath of office, then this may become the only viable option.

And after telling Trump the only way he would just hold the sentence in abeyance is if he were not able to sentence him before his term, Merchan informed him that he’s inclined to given him a sentence of unconditional discharge, in part so Trump can appeal.

a sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options.

Merchan is giving Trump a choice: Show up — even by video — and be sentenced as an adjudged fraudster — with the expectation that he won’t go to jail and if he wants to appeal things like his retroactive immunity and bad character he can do so. Or he can no show.

In which case the sentence will hang over his head for the entirety of his presidency.

None of this is satisfying.

But Judge Merchan seems to have carved out a little corner of rule of law — retroactive immunity and the judicial contempt on which even this SCOTUS has already upheld Merchan — that Trump can test before the Supreme Court. If Trump wants to take those chances, he can have an unconditional discharge precisely so he can make that appeal.

Or he can have the sentence hanging over his head for his entire term.

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