The Government Attempts to Gag Dan Richman from Speaking about His Own Data
There’ve been a flurry of government filings in the Dan Richman case.
In addition to correcting Lindsey Halligan’s confusion over her own identity and that of Robert McBride, the government has written an emergency request asking for a week to comply with Judge Colleen Kollar-Kotelly’s order to destroy all evidence after depositing a copy with EDVA.
Only, the entire motion reneges on that claim.
Some of the government requests are reasonable — they’ll promise not to access the data in the interim week, they don’t want to return the Jim Comey memo that was up-classified after he sent it to Richman in 2017 because it is now classified, and they don’t want Pam Bondi to make promises herself (which is different from Todd Blanche doing so).
To that latter end, though, they cannot imagine any reason why it’d be necessary for someone at Main DOJ — and not someone at EDVA — to certify compliance, not even given Pam Bondi’s repeated intrusion in this matter.
The Attorney General has directed appropriate Department of Justice personnel to seek clarification of the obligations imposed by this Court’s order and to take steps to comply with those obligations. But there is no practical or legal reason to require the Attorney General to immediately and personally certify compliance on the unusually expedited timeframe imposed by the Court’s order, rather permit her to rely on any of her hundreds of attorneys and officers, including any attorney employed by the U.S. Attorney’s Office for the Eastern District of Virginia or the Department of Justice, generally.
The reason why, of course, is that lawyers have shared this information between — at least — EDVA, WDVA, and SDFL. And the only people with authority over all those offices are Pam Bondi and Todd Blanche.
In a footnote, the DOJ request preserves a request for reconsideration, which makes you wonder whether there’s not more going on.
5 The Government maintains its position that the Government did not engage in an impermissible search in the 2025 investigation, nor did the Government engage in an unreasonable seizure by continuing to hold the documents obtained by the Government through a lawful search warrant in 2019. Petitioner Richman voluntarily provided these documents pursuant to consent, and while the consent agreement with Petitioner Richman includes limitations on searches, it does not provide, in the event of a prohibited search, for return of property or render continued possession of the property an unlawful seizure. Accordingly, this Court erred in treating any impermissible search as authorizing this Court’s order under Rule 41(g)—which addresses unlawful or harmful seizures—and the Court should grant reconsideration on that basis.
In a paragraph that could invite estoppel considerations, half of Trump’s defense team from his Florida prosecution (in which Todd Blanche and Lindsey Halligan argued the government had no business seizing records because their retention violated the Federal Records Act) argued that they can’t turn over the materials because … they’re covered by the Federal Records Act.
The Government is simultaneously complying with a litigation hold put in place pursuant to a preservation letter from counsel for James Comey.3 See Gov. Ex. 1 at 19. The Government further understands that copies of portions of the relevant files are in the possession of government personnel (e.g., having been printed, saved locally, or emailed). Finally, the Government understands that the relevant files may include e-mails and other electronic communications between Petitioner Richman and James Comey, when both individuals were employed at the FBI, and regarding government business. 4 Such files are undoubtedly property of the Government and are likewise required to be maintained by the Government, and in the Government’s possession, pursuant to the Federal Records Act of 1950.
3 The Government’s compliance with the order may also implicate the Government’s obligation to maintain files pursuant to the Federal Records Act. See 44 U.S.C. § 3301 et seq.
4 Indeed, as the Court noted in its December 12, 2025 opinion, the Arctic Haze investigation in part concerned alleged “theft and conversion of public records.” See ECF No. 19 at 8; see also 18 U.S.C. § 641.
Nothing about this claim is consistent with a goddamn thing Blanche and Halligan argued before Aileen Cannon in 2022.
Not.
A.
Thing.
As noted, the government wants to avoid giving Richman the stuff they’ve copied and emailed, deeming those government records.
It repeats this concern in its request for clarification.
b. It is similarly unclear to the Government whether the Court means for the Government to provide Richman with all copies of portions of the covered materials that are in the possession of government personnel (e.g., having been printed, saved locally, or emailed) in addition to a full and complete copy of the covered materials, or whether the Court intended that such documents be destroyed by the Government. The provision of such documents to Richman might in some cases (e.g., if a document from the covered materials was attached to an email sent by an attorney for the Government) seriously implicate the Government’s attorney-client privilege, the attorney work-product doctrine, attorney-client confidentiality, the deliberative process privilege, and, potentially, other applicable law, including, but not limited to, sealing orders accompanying the search warrants and any potential grand jury material subject to Rule 6(e) of the Federal Rules of Criminal Procedure.
And then it repeats it in the order itself!
3. Other than providing full and complete copies of the covered materials to Richman (not including any classified information) and the Classified Information Security Officer for the United States District Court for the Eastern District of Virginia, the Government shall maintain the original evidence (and any other portions of the covered materials in the possession of the Government) and shall not access the covered materials or share, disseminate, or disclose the covered materials to any person without first seeking and obtaining a Court order.
This is the opposite of what Kollar-Kotelly ordered. They’re asking only for the protective order, not the return — or at least destruction — of Richman’s property!
Most interestingly, though, the proposed order seeks to prevent Richman from using the hypothetically returned data — his own data!!! — for any purpose other than “this proceeding,” which would permit him to expand his Fourth Amendment complaints, but not to bitch (or sue) about what they did with his data.
8. Materials produced to Richman pursuant to this Order may be used solely for purposes of this proceeding and shall not be disclosed, disseminated, or used for any other purpose absent further order of the Court.
The problem, of course, is that it is his data. DOJ would be returning this data because … it is his data. While this may be in the order for no reason other than boilerplate, this would gag Richman from talking about what the FBI did when they conducted unlawful searches of his data (which evidence would be withheld anyway on the other complaints).
Sorry, FBI, maybe you shouldn’t have conducted warrantless searches of someone’s data if you wanted to withhold evidence othe unlawful searches of Dan Richman’s data you did.
But a judge has ruled it is his data — it belongs to him. And the notion that you’re going to gag him about what the data looked like after being returned from six years of FBI custody defies the very claims of property rights that Judge Kollar-Kotelly has already granted.
Update: Judge KK clarified her order on these two issues, while granting the delay (but complaining that DOJ didn’t raise them in briefing).
Further, this Court’s Order directed the return of Petitioner Richman’s own materials (and any copies of those materials), not any derivative files that the Government may have created. See Order, Dkt. No. 20, at 1 (directing the return of the original materials, copies of those materials, and any materials “directly obtained or extracted” from them); see also id. at 41 (explaining that the Court would not bar the Government from “using or relying on” the relevant materials in a separate investigation or proceeding). Accordingly, compliance with the Court’s Order will not intrude upon any of the Government’s privileges.
Finally, it was not the Court’s intention to require a personal certification of compliance by the Attorney General of the United States. The Court’s Memorandum Opinion makes clear that a designee of the Attorney General could discharge this responsibility. See Mem. Op., Dkt. No. 21, at 4 (“The Court shall further ORDER the Attorney General of the United States or her designee to certify …. “). The Court also understood the certification of compliance to be among the responsibilities that the Attorney General may delegate in the routine performance of her duties. Consistent with these understandings, the Court shall clarify its Order to specify that a designee of the Attorney General may certify compliance.
If and when the data and copies are returned to Richman, may he simply destroy them all?
I believe that the answer is yes from the information that we have seen about the orders, but a copy is still retained by the court should the government ever seek a warrant to examine the records. Richman destroying records has no impact.
I think were I Richman I would securely preserve the information upon return, as I would not trust this government to not take advantage of the destruction of the original(s) and thence make up evidence to suit its desires.
Under the order, DoJ is supposed to transmit under seal a full and complete copy of Richman’s data in its possession to the EDVA. How long the EDVA is to retain it, who can access it, and under what supervision remains to be seen.
There’s no obvious reason for Richman to delete it. He has more reason to retain it. The DoJ seems committed to using it. He will want to retain his copy to compare it against later disclosures, to compare it to any original records he still has for the copy’s accuracy, and to challenge the inevitable uses that exceed DoJ’s authority.
Correction: DoJ is supposed to return Richman’s originals, send a copy to EDVA, delete its own, and certify the above to the court.
Probably not. DoJ will probably request that he preserve records for discovery and treat destruction as “obstruction” and “spoilation”.
HOWEVER, Richman could begin to figure out privilege in advance, segregate records that he can assert are irrelevant, etc. Basically, prepare his complete Fourth Amendment challenges now, and put the DoJ on the clock when they refile either in EDVA or in SDFL.
*spoliation*
“spoilation” is not a thing.
It’s a typo. Let it go.
I’m imaging a scenario like this:
Govie 1 emails Govie 2. Writes “Look at this. It is exactly what Trump wants”. Includes the text of the “make them smarter” email.
The government is asking whether they have to provide this government email to Richman or delete it or what. And they cannot delete because of the Comey letter. But if they do provide it to Richman, they don’t want him sharing it with the press.
I think government is being a little obtuse, but there is some ambiguity in where to draw the line on files that they have extracted and then incorporated into emails and work products.
They were being more than a little obtuse when they incorporated Richman’s data into their “work products”..
Maybe I’m being a little dense here, but a declination memo would be a work product and it would naturally include the evidence such as Richman’s emails. So I don’t think that particular part is unreasonable.
The government is being more than a little obtuse. The government is being deliberately and willfully obtuse. IANAL but reading their brief made that clear.
A few other things I noted:
Immediately after complaining that AG Bondi cannot be bothered to certify compliance on such a short timeframe, the government notes that–already Monday, presumably–she “has directed appropriate Department of Justice personnel to seek clarification of the obligations imposed by this Court’s order and to take steps to comply with those obligations.” It seems she’s actually able to carve some time out of her busy agenda to focus on this case in short order.
I also noted the last paragraph (#8) in the proposed order, highlighted by Marcy, which would forbid Richman from using the data outside of this case. Nowhere in the preceding argument do they attempt to explain why such restrictions would be appropriate–stunning that they apparently figured they would just try to sneak it in there and that they hold out any hope it will survive.
The court may not look kindly upon the suggestions that it needs help from the Executive Branch to know how to maintain classified information, or that the Executive Branch somehow has expertise the judiciary lacks in maintaining custody of stuff–including stuff that does not belong to it (all of which the govt characterizes as a reason for the court to provide clarification, but which is really just grousing).
I’m guessing the court is knowledgeable about how the last Trump Administration took all of the Kavanaugh reports and information submitted to the FBI prior to his ascension and dumped it like a body going to the train station. ffs
But, Kavanaugh, those lips, oh, wait, that’s Caroline.
In terms of the restrictions on Richman’s speech, I think that this is part and parcel with the thought that they may need to give the original devices or an exact copy of the information back to Richman, and that it has a now-classified document on it. They want to control his ability to talk about the document. If Richman had a clearance at some point, then he would have an ongoing obligation to secure the data, but if he never had a clearance, then he wouldn’t.
I would be more concerned about any data sharing agreements that FBI has with any other agencies, and whether the data captured from the Richman devices has been shared outside FBI/DOJ for device exploitation or counter-intelligence reasons, and the ability of FBI to share/enforce a purge requirement on those other agencies. The judge’s opinion affects all of the Executive Branch, while the Attorney General is only over DOJ/FBI.
As to the possibly classified information on Richman’s original devices, here is an excerpt from Judge KK’s most recent order of December 15, 2025 (docket no. 26):
Hence Richman won’t be in need of a clearance.