Lindsey the Insurance Lawyer’s Disappearing Agreement to a Litigation Hold
I was disappointed, in the way we here in the peanut gallery sometimes are, that Tish James had to specifically rebut the silly things that Lindsey Halligan’s loaner AUSA, Roger Keller, claimed to try to excuse Lindsey’s stalking of Anna Bower.
Attorney General James’ original request asked Judge Jamal Walker to order the government to do three things:
- Abstain from further extrajudicial statements like Lindsey’s Signal stalking of Bower
- Follow rules and laws requiring prosecutors (and Federal employees generally) to retain their communications
- Create and maintain a log of all contact between any government attorney or agent on this case and any member of the news media
As Lawfare’s excellent trial dispatch from Molly Roberts described, when initially presented with this question, loaner AUSA Keller — “a civil litigation lawyer by training,” Roberts helpfully noted — got hung up on a contact log tracking not just with the reporters Lindsey the Insurance Lawyer spoke to, but also with whom others (this is implicit, but let me make it more obvious) like Eagle Ed Martin did.
Keller responded to this request, that prosecutors follow the rules, by demanding that the defense follow the same rules … which is not how it works, both Abbe Lowell and Judge Walker reportedly responded.
The next motion invites a bit more controversy, or at least confusion. James also filed a motion prior to the arraignment asking the court to order the government to follow rules preventing disclosure of investigative and case materials, as well as to refrain from extrajudicial statements concerning the case to the press and public. This motion was prompted in part by an Oct. 20 article published inLawfare by my colleague, Senior Editor Anna Bower, detailing texts sent to her by Halligan in which Halligan criticizes Bower’s tweets about New York Times coverage of grand jury testimony in the case.
This violated, the filing says, Rule 6(e) of the Federal Rules of Criminal Procedure. It argues that the exchange with Bower and the other instances of apparent disclosure it describes—including pre-indictment reports that prosecutors intended to bring charges—also violate various rules, regulations, and ethical obligations. The motion doesn’t ask for a finding to that effect, only for an order to prevent such conduct in the future.
The judge, mentioning only “a journalist” and “an article published,” notes these oddities of the filing. Anyone hoping for a television-ready showdown in which the defense demands the prosecution be held in contempt is quickly disappointed: Judge Walker has interpreted the filing correctly, confirms Lowell.
The judge determines that leaves the prosecution three options: oppose the motion in its entirety; don’t oppose it at all; or oppose the proposed relief. The Eastern District prosecutors would have to preserve all documents relevant to the trial (a litigation hold) as well as create a log of all contact between its attorneys or agents and the media. The litigation hold doesn’t bother Keller. But he expresses reservations about the log, mentioning that “the defendant is also active on the Internet.” Specifically, he takes issue with her tweeting that she is innocent.
The judge, understandably, appears perplexed. He remarks that it’s unclear what Keller is asking. And it is: A public tweet from James in which she says “I am not fearful, I am fearless” has little to do with contact between her attorneys and the media. The misunderstanding only becomes greater when Keller elaborates that any log requirement for the government should also be a requirement for the defendant, and should cover “statements of innocence before the press.”
Does he mean that James should have to keep a record of any proclamations of her intention to fight the charges against her? Or does he mean she shouldn’t be allowed to make them at all?
Keller seems to be suggesting that the restrictions on the defendant’s public speech should mirror those placed on the prosecution. But this is not how these things work. Prosecutors have unique obligations not placed on defendants, who have First Amendment rights to protest their innocence.
Judge Walker delicately instructs Keller—a civil litigation lawyer by training, as it turns out—to take some time to think about the matter and get back to him. Lowell, for his part, declares that the rules to which government lawyers are held aren’t the same ones that apply to a defendant.
“The court certainly understands the requirements,” responds the judge. It is a little less certain that the prosecutor does. [my emphasis]
Now, when I first read Roberts’ dispatch, I honestly thought Keller’s confusion stemmed from that detail, “a civil litigation lawyer by training.” He just doesn’t know what he’s doing.
But when I started writing an abandoned post on his response, I came to believe he — like Lindsey the Insurance Lawyer — is mostly performing for a one man audience. To understand why I think that, check out how loaner AUSA Keller spends a 17¶¶ response:
- Lindsey the Insurance Lawyer and loaner AUSA Keller ask that Walker not impose unilateral requirements to preserve all communications and keep a log [my emphasis]
- Background: a grand jury indicted the Defendant
- Walker should not impose unilateral requirements to preserve all communications and keep a log and also, US v. Trump! (citing the DC Circuit opinion partly upholding the gag on Trump), because Lindsey the Insurance Lawyer had to protect her client [my emphasis]
- Here’s a citation that’s totally inapt but which will allow me to argue Tish James has to shut her yap
- If the government has to “preserve all communications with any media person” and also keep a log of those contacts, “the unstated threat that she – at some future point in time – may engage in a ‘gotcha’ game where she brings a sanctions motion” may “chill all Government/media interaction” [my bold, italics original]
- “There is no Court-imposed requirement that the Government preserves the records,” but can you imagine if a log of all communications means “all communications”?
- If we have to follow the rules, Tish James has to follow rules for prosecutors too (citing US v Trump again)
- “Defendant’s right to a fair trial does not give [her] the right to insist upon the opposite of that right – that is a trial prejudiced in [her] favor,” citing US v. Trump again
- Because she’s a lawyer, Attorney General James has to adhere to NY rules of professional conduct even if Lindsey the Insurance Lawyer refuses to adhere to any rules of professional conduct
- After her arraignment, James said she “will not bow” and there have to be rules against that!
- Lindsey the Insurance Lawyer covertly bullying a journalist on disappearing messages is nowhere near as bad as Tish James saying “I will not bow” on a telly that Donald Trump can see!
- Lindsey the Insurance Lawyer was just protecting her client — which client I will decline to name — “from substantial undue prejudice”
- Grand jury secrecy is no big deal
- Lindsey the Insurance Lawyer didn’t explicitly reveal what went on in the grand jury
- Lindsey the Insurance Lawyer was merely — and heroically — “protect[ing] her client from unfair prejudice resulting from reporting half-truths”
- I’m going to distract from the way Bower caught Lindsey the Insurance Lawyer pretending “thousand(s)” of dollars was not just two thousand
- You should tell Tish to shut her yap!
I admit, the first time I read this filing, I read in terms of obvious bullshit to rebut, like I imagine lawyers do.
But when you lay it out like this, paragraph by paragraph, the pressing question becomes whether these people — not just Lindsey the Insurance Lawyer, Donald Trump’s defense attorney, but also loaner AUSA Keller — think Donald Trump, and not the US of A, are their client, a client demanding that his minions ensure that Tish James doesn’t become a rock star because of this prosecution.
Because otherwise, why demand that Tish James bow down? Why cite US v. Trump so prominently?
James addressed both these questions. She asked, Who exactly do these people think their client is?
Third, the government’s assertion that Ms. Halligan was only trying to protect “her client” raises the question of who she believes “her client” to be. Her “client” is neither the President, nor the Attorney General, nor the Administration, nor even her Office. It is the United States, as the case caption makes clear, and “[t]he United States wins its point whenever justice is done its citizens in the courts.”2 The point remains true regardless of whether the outcome is the one that the government favors. “Justice is done” when its “citizens in the courts” receive a fair trial. And in any event, a defendant’s fair trial rights decidedly trump any so-called “unfair prejudice” to the government’s case from public reporting. Courts have held that extrajudicial statements and comments by attorneys may be restricted to protect a defendant’s fair trial rights and the integrity of judicial proceedings—which override any desire by government prosecutors to “attempt to protect [Ms. Halligan’s] client from unfair prejudice.” Opp. at 6. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 361 (1966); Gentile v. State Bar of Nevada, 501 U.S. 1030, 1066 (1991).
2 DOJ, Remarks as Delivered by Attorney General Merrick B. Garland, https://www.justice.gov/archives/opa/speech/attorney-general-merrick-b-garland-deliversremarks-office-access-justices-gideon (Mar. 17, 2023).
The insistence that “fair trial rights decidedly trump any so-called ‘unfair prejudice'” is, I hope, an intentional double entendre.
James’ citation for the quote, “[t]he United States wins its point whenever justice is done its citizens in the courts,” is more subtle. The footnote cites this speech by Merrick Garland, a tribute to public defenders and defense attorneys generally, in which he emphasized the import of rule of law.
It reaffirmed that the law protects all of us – the poor as well as the rich, the powerless as well as the powerful.
In so doing, it reaffirmed this country’s commitment to the Rule of Law.
And trust in the Rule of Law is what holds American democracy together.
But the words, “[t]he United States wins its point whenever justice is done its citizens in the courts,” are not Garland’s words (though that was not the only speech where he used them). They were spoken by Willliam Taft’s Solicitor General, Frederick Lehmann, and they are inscribed on the building at DOJ. Judge Walker (a former AUSA) will presumably recognize that; Keller the loaner AUSA should: but Lindsey the Insurance Lawyer may see only a citation to Garland and worry about her boss — her client — again.
Then there’s James’s treatment of Keller the loaner AUSA’s inapt reliance on US v. Trump. She uses that to recall Trump’s misconduct as a defendant, something she knows well.
The government’s reliance on United States v. Trump, 88 F.4th 990 (D.C. Cir. 2023)—a case affirming a limited gag order placed on then-defendant Donald Trump in response to his public statements threatening witnesses, participants, and the judiciary during litigation—to defend Ms. Halligan’s interactions with the reporter is entirely misguided. Opp. at 3–4. Trump is relevant only to the extent that it proves the relative strength of a criminal defendant’s First Amendment rights and the extraordinary circumstances required to justify any burden on such rights. See id. (“[A] criminal defendant—who is presumed to be innocent—may very well have a greater constitutional claim than other trial participants to criticize and speak out against the prosecution and the criminal trial process that seek to take away his liberty.”). The Trump court set out facts justifying the order in vigorous detail, including a timeline of President Trump’s extensive attacks on witnesses, court officials, judges, law clerks, and other government personnel. See id. at 1010. It also catalogued the violent and threatening responses resulting from President Trump’s statements. See id. at 1011.
Even under those extraordinary circumstances, the court still found that “Mr. Trump [was] free to make statements criticizing the current administration, the Department of Justice, and the Special Counsel, as well as statements that this prosecution is politically motivated or that he [was] innocent of the charges against him.” Id. at 1028. Attorney General James’ speech, including following her initial appearance, cannot be reasonably compared to the statements that led to the United States v. Trump gag order, and regardless, would have been outside of its reach.
And James invoked Trump’s “almost weekly … disparaging comments against her” to suggest the government won’t win a war of the lesser wrong.
The comparison that the government now offers is to a public statement by a defendant who has faced almost weekly assertions by the President, or those carrying out his bidding, calling for her prosecution and conviction or making other disparaging comments against her. The government’s argument appears to be that “two wrongs don’t make a right.” But the defendant has not contravened the cited rules; the government has. The relief requested in the Motion is intended only to ensure that does not happen again and that, if it does, the government does not delete the evidence of its wrongdoing. That relief should be unobjectionable to the government.
The James prosecution is not functionally necessary for Donald Trump’s witch hunt — it is discrete punishment for someone who humiliated Donald Trump by treating him as a garden variety fraudster. That may be why Lindsey the Insurance Lawyer only got one loaner AUSA for this case, as compared to two overt ones for the Comey case (plus at least one more guy writing the filings), which is one part of the larger project. So maybe this is all about the posturing, an attempt to ensure that nothing about this prosecution backfires on the “client.”
But the focus on Trump — the need to respond to the totally inapt reliance on US v. Tump — distracted from something potentially more important.
Go back to bullet 5 again. Here’s that full quote:
Essentially, Defendant attempts to chill all Government/media interaction with the unstated threat that she – at some future point in time – may engage in a “gotcha” game where she brings a sanctions motion because the Government inadvertently failed to maintain a document or include a contact in its log.
This is an astonishing statement, one James addresses this way:
The opposition’s hyperbolic claim that the Motion seeks something like a gag order, Opp. at 3, fares no better. Government counsel and their agents have an ongoing obligation to refrain from certain types of extrajudicial statements and disclosures that may jeopardize a fair trial in this case. James Mot. at Sec. I. The defense is not asking the Court to “chill” all the government’s interaction with the media; it concedes that many statements that “a reasonable person would expect to be further disseminated by any means of public communications” are permissible.1 James Mot. at 9 (quoting Loc. Crim. R. 57.1(C)). Rather, the defense is seeking the Court’s assistance in assuring that the government adheres to the rules it has set for itself.
1 Another red herring, based on nothing in the Motion, is the government’s suggestion that Attorney General James is “attempt[ing] to chill all Government/media interaction” to later play “a ‘gotcha’ game” over the government’s failure to maintain a document or include a contact in its log. Opp. at 3. Following long-standing rules on extrajudicial statements is not “gotcha,” it is basic to the government’s obligation to protect fair trials.
These are prosecutors, wailing about being asked to retain documents! The government complains about being asked to preserve documents five times, plus the requirement that it maintain documents in its chill comment. And loaner AUSA Keller makes those complaints after having agreed to a litigation hold at the arraignment, something James notes in the first paragraph.
[A]s government counsel acknowledged at the October 24, 2025, initial appearance and arraignment, the government agreed to comply with the litigation hold request made in the Motion to prevent any further deletions and to preserve any other extrajudicial communications that may have been made.
Loaner AUSA Keller outright states that it would “chill” … something if prosecutors are asked to retain all their documents, something that normal prosecutors do as a matter of course, at least until a matter is concluded. This is like Trump demanding that he get to wipe every phone involved in this prosecution on a daily basis, after spending years misrepresenting what happened after Mueller team members left that team.
It’s not a “gotcha” if, as a prosecutor, you start deleting documents willy nilly. It is a real violation. It should be. Especially in a case like this one where the President accidentally issues orders on his social media site intended to be private. Is there a whole stash of Truth Social DMs about this case that have been deleted?
So I get the point of replying to the issues loaner AUSA Keller raised, including the inapt nod to the indignities that Donald Trump suffered after he got indicted and then threatened to kill witnesses (including the witness he almost got killed on January 6).
But that repeated complaint about merely retaining all your communications, particularly coming after already orally agreeing to do so, has me wondering if something much bigger than Lindsey the Insurance Lawyer’s stalking problem is going on.
“statements of innocence before the press.”
Isn’t that just precious, they think posting on social media is “statements of innocence before the press.”?
Small wonder when Trump issues his edicts by Xit.
“Then there’s James’s treatment of Keller the loaner AUSA’s inapt reliance on US v. Trump.” I first read this as “inept reliance on US v. Trump.” Then I realized that both readings were equally correct.
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I actually prefer ‘inapt’ because it infers a level of specific correlation that ‘inept’ doesn’t in the sense of general incompetence. I could be wrong, though. Either way, it’s glorious.
I had noted before that Indictment Signer (IS) Halligan didn’t specify who she was representing at the arraignment. James covers it by referring to the caption, but I suspect this is more serious than that (through IANAL) because persons without standing are not allowed in front of the bar in a courtroom. There is no legal connection between James’ property discussion and Convict-1, so forcing IS Halligan to name names here is a good enough reason to get her booted into the spectator area. That also might collapse the whole case if those three words in the second rider don’t do it by themselves.
That would make the vindictive prosecution litigation easier as well because using IS Halligan as an ersatz USA acting under Convict-1’s order became much easier to prove.
If Trump is the prosecutor in chief, as he claims, “I can do that”, then is he bound by prosecutorial restrictions and requirements? Is Bondi?
From James’ reply, cited above: “. . . a defendant’s fair trial rights decidedly trump any so-called “unfair prejudice” to the government’s case from public reporting.”
The use of the word “trump” here is a nice touch, to get under the skin of Lindsey the Insurance Lawyer’s and Loaner-AUSA Keller’s pseudo-client. Something tells me Trump would be offended by being trumped, especially by Tish James or James Comey — and even more especially by both.
As James notes, the “inapt” reliance on Trump v. USA underscores the question (as yet unanswered) of who IS “the client” being served by these two Keystone Kops Halligan and Keller. I assume that EW’s heavy implication at the end of the post is that–should all their ignorant screeching fail to carry the day–the litigation hold might eventually reveal Trump’s (or the White House’s) hand in all of this…the ultimate client and beneficiary of what used to be *our* government.
Justice Jackson’s iconic statement as Attorney General should set the standard for Government lawyers who know what they are doing:
Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.
https://www.justice.gov/sites/default/files/ag/legacy/2011/09/16/04-01-1940.pdf
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I keep thinking about when Vice President Kamala Harris said this:
August 22, 2024 // REMARKS AS PREPARED FOR DELIVERY:
Vice President Harris’ Acceptance Speech
https://d3i6fh83elv35t.cloudfront.net/static/2024/08/REMARKS-AS-PREPARED-FOR-DELIVERY-Vice-President-Harris-Acceptance-Speech.pdf
Thank you, harpie, for giving us this stellar example of how a US prosecutor of integrity and honor would present their client, “The People”.
Yes, I’ve always loved that too.
“Keller the Loaner” sounds like a spoof real-crime moniker:
My dad wanted me to be a lawyer, but the closest I got to law school was that time I got lost in Princeton on my way to Edison, NJ., BUT – holy cow – isn’t “innocent until proven guilty” a well-known phrase that just about everyone in this country knows…by heart?
“But when I started writing an abandoned post on his response, I came to believe he — like Lindsey the Insurance Lawyer — is mostly performing for a one man audience.”
I have a different theory to offer – that these people, that he is somehow able to find to defend him or support him, actually BELIEVE him. For example, they believe he is the victim of election fraud. They believe he was unconstitutionally gagged. They actually believe he was innocent in the document case, the fraud case, the campaign finance / porn star payoff case, and the sexual assault lawsuit.
Could ignorance account for the “good for the goose…” arguments? Only if they know this is retribution for how he was treated so badly and unfairly in his cases and they believe all those cases were actually unfair.
He’s snookered everyone in his base and maybe these folks too. Or, maybe they should invest in a copy of “Prosecution for Dummies”.
Is your theory really so “different” from the portrayal EW supplies? Couldn’t both be true? It would make sense after all that believing Trump’s lies requires at the very least a severe lack of intellectual curiosity, the kind of deficiency that would result in the errors EW tallies.
Trump has a lifelong habit of surrounding himself with mediocrities for the reason that they don’t threaten his self-image. Their limitations make them more likely to believe his lies; they willingly put blinders on for him. This is what happens when they try to participate in a public legal forum with qualified opponents: the adversarial system reveals their lack of training and preparation, and ultimately their lack of the ability to catch up.
Absolutely, both can be true, but they address different things. My mind frequently goes to – Why are they doing this? Why? Stupidity is one reason. Disordered thinking is another. But belief is particularly motivating. Especially, if you come from the bias of thinking that the government is alway out to get people that makes you more susceptible in believing in the “deep state”. Or, if the government has wronged you somehow. Absolutely, he surrounds himself with mediocrity at best, but I see more commonality in that those people seem to have an ax to grind that he takes advantage of by giving them an opportunity to get back at those who have wronged them in the past.
SFAIK, this is Keller’s first stint in the big DOJ leagues. I think he was a legal attaché of some sort in a central Asian embassy, and latterly he’s apparently been in Missouri, kind of like exile; maybe Josh Hawley or Vellick knows him from there and recommended him. So if he receives a summons to work on a high profile case in Virginia, why would he say no? Would he reflect on his own lack of experience, and hesitate? Dunning-Krugger suggests that he wouldn’t. Careerists probably regard principles as clogs on their advancement, so not having them, they have nothing to jettison.
RE: “innocent until proven guilty”
Trump has demonstrated over and over again that he fails to comprehend this basic principle. How many times have you seen him to say something along the lines of “proving his innocence”?
That’s not how it works, Sir…
Punishing people who didn’t publicly praise the late Charlie Kirk.
The Felon fails to comprehend this basic principle because every time he has been before a court he’s known he was guilty and his task was to make up enough bs to obscure his guilt.
If this is the case, then any case could be made up of arguments based on the credos written by anybody and believed by some. Just because some guy called Curtis Yarvin influences a prosecutor to pursue a vindictive path doesn’t mean we should allow it in court. I sorta think that is why we have things like Constitutions, laws, precedents, etc.
An innocent inapt, or is it inept?, usage. Princeton has no law school.
Exactly! That is how close I got to a law school.
Your line about complaints of “merely retaining all your communications…” I think flips things. I think the complaint is about “merely retaining all your communications” as a way to create wiggle room to delete items from Ed Martin or Pam Bondi’s contact logs with the media that are so damning that criminal charges would be appropriate, i.e. more blatant violations of grand jury secrecy than from Halligan to Bower. Which in turn fuels motions to dismiss for vindictive and selective prosecution.
Formatting tags apparently don’t work. I went from RETAINING to ALL