Tick Tock, Tick Tock: Lindsey Halligan’s Filter Follies
The court filings submitted since Jim Comey’s arraignment have set the stage for several possible prosecutorial disasters.
After loaner AUSA Tyler Lemons made a transparent bid at the arraignment to slow Eastern District of Virginia’s rocket docket with both discovery and the invocation of the CIPA (Classified Information Procedurs Act) process, Judge Michael Nachmanoff,
- Enforced a discovery deadline of Monday over prosecutors’ attempts to stall
- Adopted Comey’s preferred protective order, rejecting prosecutorial efforts to limit Comey’s own access to discovery
- Approved a CIPA schedule that resolves by December (and therefore would not delay the January 5 trial date)
Meanwhile, Comey noticed his intent to challenge Lindsey Halligan’s appointment as US Attorney, so Judge Nachmanoff can refer the question to Fourth Circuit Chief Judge Albert Diaz, who will pick a District Judge from another District to preside over the challenge. Assuming Judge Diaz responds in timely fashion, Comey will submit that motion on Monday, along with his Selective and Vindictive prosecution claim, the latter of which is likely to be rather, um, illuminating.
There’s no sign, yet, that Halligan’s loaner AUSAs failed to meet Monday’s deadline, though they did file something under seal on Tuesday. If I had to guess, that might be the first bid to hide Trump’s role in the selective prosecution under claims of Executive Privilege, though I also imagine prosecutors may try to explicitly prevent the involvement of Maurene Comey (who is suing on closely related issues) or Troy Edwards (who presumably knows details of the turmoil at EDVA) on Comey’s defense team. Right wing propagandists are hinting that it might be a bid to claim Pat Fitzgerald has a conflict stemming from his past representation of Comey; but the CIPA filings, filed by prosecutors on October 13, are predicated on the assumption “that attorney Patrick Fitzgerald receives his security clearance, or interim clearance, within a reasonable time,” suggesting prosecutors have no complaint about Fitz’ involvement.
But there’s another filing that hints at far more turmoil ahead.
On Monday, after Judge Nachmanoff ordered prosecutors to turn over all discovery that day, prosecutors submitted a motion for a filter protocol. According to the filing, the government seized a whole bunch of computer devices — a hard drive, an iCloud account, an iPhone, and an iPad — from a lawyer in a past investigation, and they want to access it for this investigation.
Evidence in the government’s custody includes PPM because the evidence was obtained from an attorney. Currently, the quarantined evidence includes an image of a computer hard drive, an iCloud download, the backup of an iPhone, and the backup of an iPad (the “quarantined evidence”). The quarantined evidence was obtained through judicial warrants in a previous government investigation. After obtaining the quarantined evidence, and prior to any review, the attorney in question reviewed the quarantined evidence, withheld purported privileged material, and provided a privilege log to the government. However, the government is not aware of any involvement by the Defendant, or other putative privilege holders, in this prior review.
The devices are exceedingly likely to belong to Dan Richman, who is at least reported to be the person whom Comey is accused of authorizing to serve as an anonymous source in the indictment.
Indeed, the possibility that DOJ, under Bill Barr, seized a whole bunch of content from Richman explains something about the 2021 memo closing the investigation into Richman for leaking (which Comey likely received in unredacted form on Monday). One paragraph of the memo describes that Richman told the FBI that Comey had never asked him to talk to the media, followed by a two-paragraph redaction that must describe some reason why the FBI believed that to be false.
It was clear from the memo that the FBI obtained proof of what Richman said to Mike Schmidt, and while Barr tried to go after NYT directly for this investigation, they had limited success, so that evidence would have come from Richman. Plus, the closing memo is pretty clear that Richman was a confirming source for Schmidt (it says that the government has not previously charged people for being a confirming source, though I believe that’s inaccurate), which Richman admitted.
So if all those assumptions are correct, let’s consider what this motion for a filter protocol confesses.
First, prosecutors launched a bid to get access to this information to use at trial on the day that discovery was due, the day after Judge Nachmanoff ordered that all discovery be provided by October 13. They seem really unconcerned about how badly that will piss off Nachmanoff, which seems reckless.
The proposed filter itself is obnoxious in two ways. It proposes a team (which it says does not include EDVA or EDNC prosecutors, but does not address whether it includes prosecutors from WDVA or another of the far-flown parts of DOJ where Kash Patel has parked his witch hunt) will review the data for a set of narrow filter terms.
2 The Filter Team is comprised of Two Assistant United States Attorneys, and their support staff, from a separate federal district from the Eastern District of Virginia and the Eastern District of North Carolina. The Filter Team has a separate reporting and supervisory chain from the Prosecution Team and are not part of the Prosecution Team.
But aside from things explicitly marked privileged, they would get access to everything. Comey would only get a say over stuff triggered by those filter terms.
You can tell how unusual this protocol is for the citations — none of which is from EDVA, and only one of which is from the Fourth Circuit — the loaner AUSAs give to pretend it is not.
Of note, courts in the Fourth Circuit have entered similar protocols to the one proposed by the Filter Team in this case to handle the segregation and disclosure of PPM. See, e.g., United States v. Reifler, No. 1:20-cr-512-1, 2021 WL 2253134 (M.D.N.C. June 2, 2021).
Further, courts in other jurisdictions, including in the Third, Fifth, Sixth, and Eleventh Circuits, among others, have also entered similar protocols to the one proposed here. See, e.g., United States v. Farizani, No. 4:21-cr-62, ECF No. 153 (S.D. Tex. Feb. 16, 2024); United States v. Fletcher, No. 2:21-cr-64-DLB-CJS, 2022 WL 1118042 (E.D. Ky. Mar. 8, 2022); United States v. Siefert, No. 2:21-2-DLB-CJS, 2021 WL 3076940 (E.D. Ky. July 17, 2021); United States v. Salahaldeen, No. 3:20-cr-839, 2021 WL 2549197 (D.N.J. May 7, 2021); United States v. Lloyd and Strong, No. 9:25-cr-80015 (S.D. Fla.), United States v. Martinez and Vazquez, No. 24-cr20343, ECF No. 49 (S.D. Fla. Sep. 24, 2024); United States v. Blackman, No. 23-cr-20271, ECF No. 105 (S.D. Fla. Apr. 3, 2024); United States v. Waxman, No. 21-cr-60253, ECF No. 105 (Aug. 12, 2022).
These cases charged insurance fraud, healthcare fraud, distribution of controlled substances by a doctor, a combination of both fraud and controlled substance abuse, health care fraud, more healthcare fraud, and still more medicare fraud. They’re not only out of district, but inapt to this case.
They hide what prosecutors are probably attempting to do: to get to materials privileged to Richman in which he spoke about Comey.
This is something I predicted prosecutors would try to do in a post and video on the lessons from the Durham investigation. This is an attempt to use this proceeding to get to stuff privileged to Richman that they could use in their conspiracy fever dream.
The other reason this is wildly inappropriate goes to something Nachmanoff seems to be attentive to. As I noted, in his order approving Comey’s preferred protective order, Judge Nachmanoff noted that cases brought by Pat Fitzgerald, Robert Mueller, and under the supervision of Jack Smith did not adopt the punitive standard the Lindsey the Insurance Lawyer’s loaner AUSAs are attempting.
1 The Court observes that protective orders entered in numerous other high-profile false statements cases, within and outside of this judicial district, do not contain such limitations. See, e.g., Protective Order, United States v. McDonnell, et al., ECF 46, No. 3:14-cr-12-JRS (E.D. Va. Feb. 6, 2014); Protective Order, United States v. Kiriakou, ECF 32, No. 1:12-cr-127-LMB (E.D. Va. April 13, 2012); United States v. Libby, ECF 22, No. 1:05-cr-394-RBW (D.D.C. Nov. 23, 2005); Protective Order, United States v. Blagojevich, ECF 67, No. 1:08-cr-888-JBZ (N.D. Ill. April 14, 2009); Protective Order, United States v. Manafort, et al., ECF 46, No. 1:17-cr-201-ABJ (D.D.C. Nov. 15, 2017).
If one were to adopt the attorney-client review standards used in the Trump cases, the attorney in question — Rudy Giuliani, and John Eastman, among others, in the Trump cases, and Richman here — would be involved to speak to their own privilege, a process which created months and months of delay. The loaner AUSAs are pretty transparently trying to find a way around that process.
For now, Comey is adopting a different approach. As prosecutors describe it, Comey plans to challenge the warrant accessing this data in the first place.
First, the defendant has not explicitly objected to the protocol. As the government understands it, the defense prefers to challenge the underlying search warrant first before any review takes place. This two-tiered process is unacceptable in the government’s view because it risks delay.
It makes sense. The closing document in the investigation into Richman found that there was not sufficient evidence to charge either Comey or Richman, including for the false statements with which Comey has now been charged.
The investigation has not yielded sufficient evidence to criminally charge any person, including Comey or Richman, with making false statements or with the substantive offenses under investigation.
Unlike grand juries (where we can assume Lindsey the Insurance Lawyer neglected to tell grand jurors about all the conclusions there was not evidence to charge this), affiants for warrants are required to tell judges of all material information, such as that prosecutors already decided there’s no crime here. This is what the entire stink about the Carter Page FISA warrants was about. And the only thing that has changed since FBI presumably obtained warrants for Richman’s devices in 2019 is that Richman testified, twice, that Comey didn’t order him to leak to the press, and also that three sets of prosecutors (including those who reviewed the material in 2019) concluded there was no crime they could charge.
So if whoever got a new warrant to access this material for use in this investigation failed to disclose the prior prosecutorial decisions, that would make for an easy Fourth Amendment challenge. (I would be unsurprised if agents in WDVA already accessed this material, using precisely this protocol, which is one reason I find the language excluding EDVA and EDNC from the filter team but not identifying who would conduct it suspect.)
But understand what else is going on. The loaner prosecutors say they need to use an inapt filter process that treats both Comey and Richman like fraudsters because allowing them to participate in the process — or even pausing for a Fourth Amendment challenge — “risks delay.” But this is EDVA, home of the rocket docket, and in EDVA, you don’t wait until after you’ve indicted to obtain material you think might be helpful to your case.
Meanwhile, the clock is ticking.
As far as I understand the posture of this, unless Judge Nachmanoff orders differently, Comey will not have to respond to the October 13 request for two weeks — October 27, with a reply a week later, after all of Comey’s initial pretrial motions are submitted (he might file a Fourth Amendment challenge for the second deadline, October 30, or just file it on October 26).
Nachmanoff seems unimpressed by either this motion or the sealed filing.
Which is to say, unless something changes, this purported filter process wouldn’t even start for another month, resulting in the provision of any relevant materials to Comey months after the discovery deadline.
If this is a bid to access this material for this trial, it will likely fail. And, because this is EDVA, if that’s what prosecutors are trying, it may not work as well for investigators (including Jack Eckenrode, from John Durham’s team) as it did during the Michael Sussmann trial.
Fascinating. 1) The out-of-town prosecutors may be as unprepared for the rocket docket as Ms. H. This mess could be simple cluelessness on their part. 2) emptywheel.net is a shining demonstration of the value of deep training in the humanities.
TY!
And yes, not only are people unprepared for rocket docket but judges tend to have little patience for interlopers.
‘This mess could be simple cluelessness on their part’
True. But isn’t it part of their job to know the rules of the jurisdiction in which they will argue their case?
If they just turn up and think they can do whatever they want then I think we’re in this sort of territory:
This probably isn’t what XTC had in mind when they wrote this track but the lyrics do seem oddly appropriate – tick-tock:
https://www.youtube.com/watch?v=r8f8K6TNtXI
Trump’s had to wait through his first regime, followed by Biden. Now it’s full steam ahead.
The out-of-town prosecutors may be as unprepared as Lindsey Halligan, but they are not likely to be the lawyers pulling the strings in this case. Given the stakes, those are likely to be at Main Justice. The odds that they are all “clueless” seem to be nil.
I agree that there are probably more DOJ people involved than just Halligan and the two Loaners.
Even though the Trump World lawyers added to DOJ have been less than impressive, I think at least one realizes that they need to add more firepower ASAP because the Loaners came in way late to the case and expectations should be low for what Halligan is going to contribute. The Grand Jury part might have been her only meaningful contribution to this.
With the DOJ Political Actors remaining in the Shadows rather than clearly involved, they can plan strategy – tactics while the Loaners do the grunt work needed for the Court.
Even with the help from the Hidden Hand(s) at Main Justice, the Rocket Docket is going to be quite an obstacle for them to overcome.
Lindsay the Insurance Lawyer was hired for one thing only – her willingness to seek grand jury indictments upon Presidential command. Don’t expect anything else from her.
This is such an upside-down case. Typical process is for prosecution not to indict until their ducks are lined up (and not to indict unless they think they can win at trial). Usually it is the defense that is scrambling to get ready for trial, and therefore willing to waive rights to speedy trial. The prosecution can only ask for a delay for “good cause.” Usually good cause does not include not being ready. We know, of course, why this was such a last-minute charge to beat the statute of limitations. The problem is that the prosecution had all that time to investigate and indict, and chose not to. Hard to say that constitutes “good cause” for delay.
IANAL, so maybe a dumb question …
Is it odd that the motion regarding the filter protocol starts:
“The United States, by and through its assigned Filter Team, respectfully files this motion …”
and yet the motion is signed by the 2 lawyers from N. Carolian (at least they are consistent!) who are not on the Filter Team? Does “by and through” mean something different than I think?
Slipshod legal work seems to be a hallmark of the Trump team. I believe it is evidence of their concern for the rule of law. In their future the law will be what they say it is and gainsayers, as enemies of the state, will be incarcerated, deported, disappeared, whatever it takes.
John Bolton indicted on 18 counts for classified documents
Had he been a former president with a sympathetic judge he had appointed in spite of a lack of qualifications, he would have no problem. Hopefully the legal system functions appropriately and he has no problem anyway.
Ehhh, I am torn. I am not a big fan of Bolton, but the enemy of my enemy…you know. Unfortunately, he shared what at one time were classified documents with his wife and daughter over an unsecured email.
In other words, he’s facing a felony indictment for doing exactly what Pete Hegseth did.
Angels Fear to Tread
Got a burn bag on my shoulder
Got a clenched fist in my pocket
I’ve already thought things over
For a speed trap rocket docket
Dismissed Todd Gilbert and Zach Lee
Will they testify or lie low
And about those words with Blanche, gee
What about those words with Blanche
Just no more hammer and sickles,
SVR as well
And no misfortunes
that misfortunes’ rookies tell
I got a mucky Benny & a mustered feed
Now conformed and rendered govt
is all I need
I want govt of MAGA wingers
If it’s wrong then, through and through
They’ll make sure my sticky fingers
Will have something they can live up to
Hope it’s not a Waterloo
Dismissed Todd Gilbert and Zach Lee
Will they testify or lie low
And about those words with Blanche, gee
What about those words with Blanche
I want govt of MAGA wingers
If it’s wrong then, through and through
They’ll make sure my sticky fingers
Will have something they can live up to
Hope it’s not a Waterloo
Hope it’s not a Waterloo
Hope it’s not a Waterloo
10/16/25
https://www.youtube.com/watch?v=GhQ_-NH1-4M
“The Cascades – Angel on My Shoulder”
Do wonder what these clowns would do in a real emergency. Its going to make a lot of material for comics and perhaps a film about how the /American judicial system ground to a halt. Oh well as we used to say, its all .pensionable time. /given the age of some of the players things could come to a grinding halt or perhaps trump will insist the trials continue with a corpse at the table. trump just looks so silly with all of this.