Prosecutors Sucking Lemons in Their Vindictive Prosecution of Jim Comey
In this post, I noted a paragraph of a recent ABC story that had escaped much notice: one reason prosecutors didn’t think they would succeed in prosecuting Jim Comey was because there would be too much discovery.
Prosecutors further expressed concerns about the department’s ability to take the case to trial quickly due to problems identifying all the relevant materials that would need to be handed over to Comey’s lawyers, sources said.
I speculated that one reason the prosecutors borrowed from Raleigh — Tyler Lemons and Gabriel Diaz — claimed there would be extensive classified information was to stall for time.
Such efforts are already failing. At the arraignment, Judge Michael Nachmanoff ordered the two sides to come up with a discovery order by Friday or submit their competing sides Monday. Yesterday, Comey’s lawyers submitted this filing, explaining that they had immediately signed the standard discovery order, but had yet to receive a signed copy back. As described, the two sides disagreed about one issue, what pretrial motion date would govern: the deadline for his Vindictive and Selective Prosecution claim (so five business days before October 20 — which is Monday), or the one ten days later for his other claims (October 23).
In the course of the parties’ meet and confer, the government sent the defense the standard discovery order attached and the defense signed it with no changes to the government’s proposal and returned it for government signatures on Thursday afternoon, October 9, 2025. To-date, however, the government has not returned a signed copy. While the parties agree to the terms of the standard discovery order, the parties disagree as to an interpretation of one term of the order—specifically, which of the two pretrial motions deadlines prompts the government’s Rule 16(a) production described in paragraph 1, requiring the government to produce certain discovery “no later than 5 business days before the deadline for pretrial motions.” See Exhibit 1 at 1 (emphasis added).
Mr. Comey asserts that the first set of pretrial motions due on October 20, 2025, which the Court ordered at the arraignment hearing, demands that discovery be produced on Monday, October 13, 2025. Naturally, at least some of this discovery will inform the bases for the vindictive and selective prosecution motion that is to be filed on October 20, 2025. As of the date of this filing, the defense has received one page of discovery. The government contends that the term “deadline for pretrial motions” refers to the deadline for the second tranche of pretrial motions, October 30, 2025.
To be able to fully articulate all bases for the first tranche of pretrial motions including the vindictive and selective nature of this case; to be able to effectively defend Mr. Comey; and because it is the plain language of the standard discovery order, Mr. Comey respectfully requests that the Court enter the additional proposed order making clear that “the deadline for pretrial motions” referenced in the standard discovery order is the first pretrial motions deadline of October 20, 2025. [my emphasis]
The part of this that is unmanageable is the requirement that prosecutors provide any statements the former FBI Director made about the matters at issue, which must be epic.
ORDERED that, pursuant to Fed. R. Crim. P. 16(a), no later than 5 business days before the deadline for pretrial motions, the government shall provide to the defense or make available for inspection and copying materials listed below that are in the possession of the U.S. Attorney’s Office for the Eastern District of Virginia.
[snip]
any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the government, the existence ofwhich is known, or by the exercise of due diligence may become known
But the real reason prosecutors attempted this ploy is the requirement that prosecutors provide everything material to Comey’s defense (to say nothing of Brady obligations).
3. The government shall permit the defendant to inspect and copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of his defense
The rest of the ABC piece makes clear some of what that will include:
There’s Dan Richman’s testimony that, contrary to the claim in the charges, Comey had specifically ordered him not to serve as an anonymous source for the press.
Daniel Richman — a law professor who prosecutors allege Comey authorized to leak information to the press — told investigators that the former FBI director instructed him not to engage with the media on at least two occasions and unequivocally said Comey never authorized him to provide information to a reporter anonymously ahead of the 2016 election, the sources said.
[snip]
When prosecutors met with Richman in September, he told them that he never served as an anonymous source for Comey or acted at Comey’s direction while he was FBI director, sources familiar with his interview told ABC News. In at least two cases when Richman asked if he should speak with the press, Comey advised him not to do so, sources said.
As an earlier ABC story reported, it will also include John Durham’s testimony that, in four years of trying, he never found evidence that Jim Comey lied.
John Durham, the former special counsel who spent nearly four years examining the origins of the FBI investigation into President Donald Trump’s 2016 presidential campaign and its alleged ties to Russia, told federal prosecutors investigating James Comey that he was unable to uncover evidence that would support false statements or obstruction charges against the former FBI director, sources familiar with the matter told ABC News.
And it’ll also include the testimony of other prosecutors who spent years investigating Comey that they also did not find any evidence he committed a crime.
The prosecutors also met with a team of lawyers at the U.S. Attorney’s Office in Washington, D.C., who had investigated Comey for years — including calling him to testify before a grand jury in 2021 — but were unable to identify any chargeable offenses committed by Comey, sources familiar with the meeting said.
It might even include the declination recommendation submitted to Erik Siebert just days before Trump started demanding prosecutions anyway.
Whether or not Comey’s Vindictive and Selective Prosecution succeeds (as Lawfare has laid out, the legal standard for those is a bit inapt for his case), this testimony would nevertheless provide an opportunity to lay out proof of something that right wingers and NYT reporters continue to deny: Donald Trump did investigate precisely the same people he demands be prosecuted now.
For years.
But some very determined prosecutors concluded that there was no probable cause to charge him.
Without waiting to hear from prosecutors, Nachmanoff filed the discovery order — signed by just Comey’s attorneys — to the docket, and issued an order stating that the earlier deadline applies.
The first pretrial motions deadline in this matter is October 20, 2025. This is the pretrial motions deadline to which the discovery order refers and the date that prompts the government’s Rule 16(a) discovery production.
By Monday, Lemons and Diaz are going to have to decide how badly they want to risk their own law license.
They could move to dismiss the prosecution, the ethical thing to do, but one that will get them fired. And even then, now there’s a matter before Nachmanoff that could force the disclosure of all that anyway.
They could admit that Lindsey the Insurance Lawyer was not lawfully appointed (the one piece of discovery they did provide is likely her appointment order, which will be enough to prove that she was not lawfully appointed), and therefore the indictment is invalid.
They could turn over evidence to Jim Comey that shows prosecutors knew there was no probable cause to charge him but did anyway.
Or they could stall, putting their own careers at risk in a different way.
This dilemma makes it clear why Comey was all smiles last week. It makes it clear why Pat Fitzgerald, and not Lemons and Diaz, appeared to be the one directing a prosecution Wednesday.
It even makes his two-phase approach clear. Comey’s case is inapt to existing Vindictive and Selective Prosecution precedents. But what Fitzgerald has done is force an immediate disclosure of this stuff, which he can then use to make arguments that effectively put Lindsey Halligan’s — and through her, Trump’s — behavior on trial, what Fitz described as “a grand jury abuse motion, and outrageous government conduct motion.”
Unless prosecutors find a way to make this problem go away, in nine days, we’ll get details (in the Vindictive and Selective Prosecution motion) of how badly Trump has tried to prosecute Jim Comey, and how those efforts failed, until the moment he unlawfully installed his own defense attorney as US Attorney at EDVA.
Update: The government has submitted a fairly contemptuous motion (because it does not recognize Nachmanoff’s order), partly hiding behind protective orders.
One other thing about how this will work.
Remember that Maurene Comey is suing, arguing that she was fired solely because of her dad.
I would be unsurprised if she submitted a amended complaint incorporating the vindictive prosecution motion.
One MORE thing: By the time of Tish James’ arraignment, Comey’s selective prosecution motion will be submitted.
My thoroughly non-professional take is that none of these vindictive prosecutions were intended to make it to trial. They are brought simply to try to intimidate the targets.
That’s what a bully does, and that’s what Trump is doing.
Hopefully it backfires spectacularly and because of it more people begin to recognize the huge mistake they made voting for Trump and the Republicans.
The more the merrier.
Do you think Ms. Comey was fired solely because of who her dad was?
The timing of her firing also seemed like was to help the administration with their Ghislaine Maxwell problem.
No idea, but these details will make it easier for her to force them to give her a reason.
Neither is really helpful for them.
Attorneys that do not uphold the Constitution and the rule of law need to be sanctioned. Anyone you can file a complaint with the bar for an attorney’s personal violations, but only if that conduct relates to their fitness to practice law.
The bar does not have jurisdiction over purely private matters, but it can discipline an attorney for personal misconduct that reflects poorly on their honesty, trustworthiness, or professional judgment.
The rules of professional conduct state that a lawyer can be disciplined for committing an “act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”. Examples include:
Crimes: Criminal offenses may be grounds for discipline, particularly if they indicate an indifference to legal obligations.
Dishonesty or fraud: Conduct involving dishonesty, fraud, deceit, or misrepresentation—even outside of a professional context—can result in disciplinary action.
Serious interference with justice: Conduct that is prejudicial to the administration of justice is prohibited. This can include behavior in and out of court that shows disrespect for the rule of law.
Harassment or discrimination: Conduct that a lawyer knows or should know is harassment or discrimination based on factors like sex, race, religion, or age can be grounds for discipline.
Pattern of repeated offenses: A history of repeated violations, even minor ones, can indicate indifference to legal obligations and lead to discipline.
Just throwing it out there. The public needs to be aware of any recourse available to sanction those who are officers of the court.
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How do we start compiling the violations of individuals in this nightmare. Just some kind of easily accessible database that enshrines the violence of a low-level ICE employee, the unlawful acts of bad attorneys, that captures the everyday crimes of those who will probably be forgotten when and if we have some kind of reckoning. For my money, the butt-crack guy or the lawyer with MAGA ambitions need in many respects to be punished as much as Steven Miller because their punishment has a more impactful deterrent effect
Thank you for sorting all of this tortured history out for us, Ms. Wheeler.. I am not an attorney but I can’t imagine a judge looking at the history of Durham’s investigation and the IG report and Erik Siebert’s declination, even allows this case to go to trial. I think the only question is whether Trump’s rage wins out over the Justice Department’s institutional desire not to humiliate itself.
I doubt Lindsay will be hurt much by losing her law license. She will be hired by some GQP PR firm for enough to keep the hair spray companies in business.
My guess is that the Prosecution keeps pushing this case until it gets thrown out. Trump will then just claim the court and judge as corrupt and move on. Same with the other vindictive prosecutions.
This is all a gross charade to keep a mad man happy.
This seems more likely than any other prediction I’ve seen. Variations on this: bar (or court?) sanctions on individual DoJ lawyers, departure or resignations from DoJ, and potentially civil or criminal liability for DoJ attorneys in the future. Some blowback on Bondi or Kash seems possible but less likely. Those hypotheticals don’t likely have much effect on the larger political narrative.
I am skeptical that Lindsay Halligan has a high enough profile or talent level to fail into a comfortable wingnut welfare position. I suspect she may end up closer to George Santos’ fate, recording videos on Cameo to pay the bills.
“This is all a gross charade to keep a mad man happy.”
Slightly OT but…they didn’t fly Trump to Walter Reed for combo flu/COVID shots. No, he underwent tests for his obvious CVD, CHF, peripheral edema , PVD, et al, which is severe enough they’re monitoring it closely. As well as an MRI to see if he’s had any more mini-strokes lately. And they’re hiding it so Vance doesn’t immediately invoke the 25th Amendment. So…
corr.: “This is all a gross charade to keep a dying man happy.”
…why not both? … > “dying mad man”
Works for me
Atrios speculated that it was for a 48 hour infusion of dobutamine, a heart drug.
Well, the announcement of an ‘annual’ physical six months after the other one was always a bit suspicious to me. So, while other commenters have covered potential medical issues for Convict-1 personally quite well, I remain curious about this timing.
I suspect this may actually be an attempt to lay the foundation of a 25th Amendment play by Vance (who will not be an improvement) by documenting the physical and mental decline on paper. I think the tell will be how quickly and completely the results are released to the public. I speculate that Wormtongue Miller will oppose any interference in his de facto rule by Vance(TBF I don’t know their true social dynamic) so we could get a palace food fight which I doubt will be impressive. Let’s also remember Loomer will have something to say as well if 25A is tried.
Monday is Columbus Day, so I think five business days before October 20th was yesterday.
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Interesting point. Comey did, however, identify Monday 10/13 as the intended deadline in his filing (in which he also reported that he had received only one page of discovery), so I expect that will prevail–not that the extra few days will save the prosecution.
Marcy says the judge entered the discovery order without waiting to hear from prosecutors, but the prosecution filed nothing by 5 ET yesterday, and it appears the orders did not come until after that. Basically, the prosecution should have known that they needed to directly assert any scheduling argument by yesterday’s deadline, but failed to do so.
Based only on my very limited review of such filings in the past, it appears to me that it is customary for the prosecution to take responsibility for making joint filings after meet-and-confer with defense, but Comey did so here, leaving the prosecution–which did not even provide written confirmation of their position after conferring with the defense–look like they’re not really leading this prosecution (as Marcy noted regarding the arraignment).
I guess things move a little slower in Raleigh. As ever, taking an assignment Donald Trump will turn out badly for you.
Dr. Wheeler, thank you for this. It gives me hope.
Off topic Now Idaho knows why Qatar gave Trump a free jet.
Unless they’re training for attacking Iran, they could have done it at any base in the Plains States. (Reese AFB in Texas was popular for this.)
As a noted trial lawyer of my acquaintance used to gloat in these situations, “Fuckee fuckee fuckee.”
Just wanted to say congratulations, Google News linked to this page. That’s a first for me, must be getting some serious numbers. Keep up the good work.
#tu
Oh. I was wondering why we had so many people reading.
!!! EVERYONE needs to be reading emptywheel right now.
I’ve seen Emptywheel articles show up in my Google News feed occasionally in the past, so this is not the first time it’s happened.
Memeorandum too
Bondi and Halligan found two DoJ patsies to help her out. It put their federal jobs and law licenses on the line, regardless of what they do. Before Monday, they should reflect on the first rule of holes.
Yeah, I haven’t checked which state they’re barred in. They haven’t actually filed anything themselves either, so I’d have to go see their filings in NC
What with claims of presidential privilege flying around in immigration cases just how far will discovery go? Is it the same the TRO applies to Hegseth but not Trump because Justice Roberts’ dictatorship for life ruling? Trump can not micromanage every vindictive prosecution any more than Kavanaugh can have only the Supreme Court decide the facts on the ground. There will be “people” in the middle.
Any communications of vindictive prosecution will be Brady in discovery?
My guess is Bondi told the two lawyers just make an appearance and get the trial date postponed and we’ll get someone else to deal with it later. Now that they have to actually do something, they are probably realizing they are between a rock (what Trump wants) and a hard place (their law licenses).
Marcy,
IANAL and i’m so thankful for this amazing post heralding Trump’s legal retribution tour beginning in Eastern District of Virginia’s, Federal Courthouse. Will officers of the court Lemons and Diaz delay tactics of not complying with court calendar motions in timely manor, “…to-date, however, the government has not returned a signed copy.” play very well for an audience of 1. “…Nachmanoff filed the discovery order — signed by just Comey’s attorneys — to the docket, and issued an order stating that the earlier deadline applies.” (Oct 13 2025)
Will Nachmanoff, delay the proceedings so the prosecution can catch up to the defense? Are Halligan, Lemons, and Diaz, about to find out what the urban meaning of FAFO means on Monday October 13, 2025? Hope springs eternal.
So do Diaz & Lemons call in sick Monday, let Lovely Lindsay bite the disbarment bullet?
Lemons was in Marine Corps, probably banking on military pension in addition to US, he stands to lose both. Diaz is a Campbell law grad, I’m sure he’s considered DEI by his trump overlings, so he’s got to be a good boy.
I wonder how many DOJ lawyers they went thru before they found these two quislings.
When this case blows up trump will be railing against the judge as an “enemy of the people” and warning that many people will be very angry at her.
Ever since the intensive IRS audit of Comey led to a *refund* of $347, it has been clear that trying to prosecute him is insane.
No matter what you think of him, this is a man that obviously has all of his ducks in a row, and has three different kinds of paperwork certifying the proper positioning of those ducks at all times.
It does look like he’s very good a lining up ducks which leaves me to wonder why he announced reopening the Clinton investigation just before the election. He’s doesn’t strike me as one to bat a hornet’s nests.
I’ve always thought that someone (Guiliani?) with inside info about Clinton emails on Huma Abedein’s husband’s laptop threatened to reveal it to the press. Comey buckled and started an investigation, quickly concluded, but the damage was done. I think he made the calculation that Clinton was going to win and this way his beloved FBI would come out unscathed. Little did he know.
In addition to the possibility of Lindsey Halligan being unlawfully installed as US Attorney at EDVA, there is also the possibility that she may have problematic op sec. Remember, she was listed as having been hacked by Iran:
“Hackers tied to Iran preparing ‘calculated smear campaign’ on Trump, cyber agency says” – 7/1/25, John Sakellariadis
“The warning from CISA came in response to reporting from Reuters on Monday that said hackers using the pseudonym “Robert” reached out to them claiming they planned to release 100 gigabytes of emails from Trump, his adviser Roger Stone and lawyer Lindsey Halligan, White House chief of staff Susie Wiles and porn star Stormy Daniels.”
“The same account that reached out to Reuters stole legitimate email correspondence from the Trump campaign this summer and later attempted to leak it to the news media — alarming government and Trump campaign officials.”
https://www.politico.com/news/2025/07/01/iran-hackers-trump-susie-wiles-00434892