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Tick Tock, Tick Tock: Lindsey Halligan’s Filter Follies

October 16, 2025/19 Comments/in emptywheel /by emptywheel

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.

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“Sensitivities and Exposure:” Six Stupid Things about Lindsey Halligan’s First Filing

October 12, 2025/66 Comments/in emptywheel /by emptywheel

I already noted that, after Judge Michael Nachmanoff issued an order setting Monday as the deadline for prosecutors to provide Jim Comey all the discovery in his case, prosecutors submitted what they fashion as a Motion for a Discovery Order.

I was going to leave the filing well enough alone. Either Pat Fitzgerald or Judge Nachmanoff will respond later today, when things will get interesting. But there are a number of stupid things about the filing I can’t shake.

1) First, the prosecutors (it was submitted by Gabriel Diaz) do not fashion this as a motion for reconsideration. They just … pretend that Nachmanoff’s order doesn’t exist, and pretend they’re submitting this for the first time. That seems like a spectacular way to infuriate a judge.

2) They’re asking for two deadlines — October 14 for the things pertaining to the vindictive prosecution motion and October 20 for everything else, a transparent attempt to keep things from Comey that might be pertinent to his vindictive prosecution motion.

Part of their justification for filing this is that the parties had not reached an agreement and so they were following Nachmanoff’s order to submit competing versions on Monday.

On October 8, 2025, the Court ordered “the parties immediately confer regarding the entry of a joint discovery order” and further ordered “that if after good faith discussions the parties are unable to agree on and file a joint discovery order by Friday, October 10, 2025, . . . the parties shall each submit a proposed discovery order by Monday, October 13, 2025, at 5:00 p.m. D.E. 24.

But then, in a high school debate-worthy footnote, they suggest that Monday couldn’t be the deadline because it’s not five business days before the first pretrial motion deadline, since it’s a holiday.

Following the Court’s orders regarding discovery at docket entries 28 and 29, the Government conferred with Defense as to what the discovery deadline is. The Defense position was that, per the Court’s Order, discovery could have technically been due on Friday, October 10, 2025. But the notion that discovery was due prior to the Court entering a discovery order is not plausible. Alternatively, the Defense identified October 13, 2025, as the due date. This date is a Federal Holiday and is also inconsistent with the discovery order from this Court that lists discovery as due five business days before the pretrial motion deadline.

You’re already treating Monday as a business day!! Your entire premise here — that Fitzgerald should have held off on filing until Monday — is that you’re working on Monday.

3) Elsewhere — apparently in an attempt to suggest they were being really nice by letting Comey submit a second set of pretrial motions on October 30 — they describe that the default pretrial motion deadline going into last week’s hearing would have been October 22.

The defendant requested, the government agreed, and the Court ordered two motions Deadlines, October 20, 2025, and October 30, 2025. Notably, EDVA Local Criminal Rule 12 states that pretrial motions should be filed within 14 days of the arraignment. Here, the 14 day deadline would have been October 22.

This amounts to a confession that the default deadline for discovery going into last week’s hearing would have been five business days before October 22, or October 17. Prosecutors provide no explanation why they need an extra three days simply because Comey has two sequential pretrial motions.

4) They describe that Comey wouldn’t discuss the discovery order on October 7 when — for the first time in the 12 days since Comey had been indicted — prosecutors first reached out, because Comey’s team first demanded to know who the people described in the indictment were.

At that time, the government discussed with the defendant the proposed standard EDVA discovery agreement and a discovery protective agreement. At the initial discussion the defendant would not agree until the government provided information on the U.S. Attorney’s appointment and the identities of PERSON 1 and PERSON 3 on the Indictment.

Remember: Pat Fitzgerald said three different times in the arraignment the next day that he still hadn’t been told who these people were. So Diaz is effectively confessing that prosecutors wouldn’t — perhaps couldn’t — describe who these people were.

5) The only justifiable reason they give for delay is that the two sides have yet to agree on a protective order, which they claim is really important because of “the sensitivities and exposure associated with this prosecution.”

Additionally, the parties have yet to agree on a discovery protective agreement. Considering the sensitivities and exposure associated with this prosecution, a discovery protective agreement is a vital part of the overall discovery plan.

[snip]

On the afternoon of October 9, 2025, the defendant emailed back the government’s proposed protective agreement with significant proposed edits.

[snip]

Consistent with the Court’s direction at arraignment, the parties have also conferred regarding a discovery protection agreement. The government provided a past template used in the Eastern District of Virginia. The Defense made substantial edits, and the government agreed to those edits in large part. However, the parties still lack agreement as to whether the discovery can be provided and retained by the Defendant.

But they don’t provide the protective order (AKA “protection agreement”) with this filing. By their logic, they’re refusing to turn over discovery until they have one. By not turning it over, they’re ensuring that they cannot meet the currently set deadline of Monday.

6) Finally, they spelled North Carolina wrong.

Update: Corrected (from five to three) how many more days prosecutors are trying to get off what would have been the original October 17 due date.

Update: Here was Comey’s response (which noted that the government was just trying to change the terms of the discovery order after Comey signed it). And here’s Nachmanoff’s order rejecting the government bid.

Now the government is dicking around with the protective order, trying to mandate that the former Director of the FBI have a babysitter while reviewing discovery.

Update: Here’s Comey’s response and his proposed protective order.

Update: Judge Nachmanoff adopted Comey’s preferred protective order. In his order, he included this footnote.

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).

As you all likely know, Libby was a Fitz case. So were Blagojevich and Kiriakou — the latter of which was in EDVA.

Manafort, of course, was Mueller. And McDonnell, also in EDVA, was under the supervision of Jack Smith.

So a tidy way of saying, “Lindsey the Insurance Lawyer is trying to treat Comey worse than the investigations Trump is trying to avenge.”

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Prosecutors Sucking Lemons in Their Vindictive Prosecution of Jim Comey

October 11, 2025/47 Comments/in emptywheel /by emptywheel

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.

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The Nativists Are Getting Restless: How the Rhythm of the Comey Prosecution May Backfire

October 10, 2025/16 Comments/in emptywheel /by emptywheel

Donald Trump indicted Jim Comey (and Tish James, and probably John Bolton next) not just because he is wracked by a compulsion to humiliate the people who have the temerity to suggest the justice system should apply to him, too. His fascist project also requires him to completely replace rule of law with corruption, as part of a tool to enforce loyalty.

But as he betrayed in the Truth Social post to Pam Bondi that he accidentally posted publicly, he also did so because his rubes are growing impatient.

I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done.

Donald Trump has sold his rubes on a promise of “justice:” that those he has demonized will be be branded criminals not just in Trump’s propaganda, but by the legal system as well. The nativists were getting restless that he had yet to deliver and so Trump was under pressure and that’s part of why he pressured Bondi in turn.

It’s not just Trump’s pathologies that demanded these indictments; it’s also the impatience of a very dangerous mob.

With the impatience of Trump’s mob in mind, I want to look at what the Comey arraignment suggests the rhythm of this particular prosecution will go.

EDVA’s rocket docket

EDVA has what’s called a “rocket docket,” an expectation that cases go to trial as quickly as possible and that the trial be as short as possible. On its face, a rocket docket could disrupt Trump’s need to feed his rubes, because it would hasten the moment when the whole thing is exposed as a fraud.

But it also poses a problem because the professionals who will take over this prosecution from Lindsey Halligan — Raleigh AUSAs Tyler Lemons (who took the lead at the arraignment) and Gabriel Diaz — only filed their notices of appearance on October 7, the day before arraignment, and when Patrick Fitzgerald reached out to them, they were completely unprepared to describe even the most basic aspects of the charges against Comey.

Unsurprisingly, the first thing Judge Michael Nachmanoff asked — after Fitzgerald entered a plea of not guilty for Comey — was to ask what date speedy trial would require a trial, which both Fitzgerald and Nachmanoff agreed would work out to be December 17.

When Nachmanoff asked if the case could go to trial by then, Fitzgerald skipped a step, immediately describing that he had sent a letter to prosecutors laying out his theory of defense and a two-phased set of motions he planned to file. He described the first — a Selective and Vindictive prosecution challenge and a challenge to Lindsey the Insurance Lawyer’s appointment — to be submitted on October 20. As Fitzgerald described, “our view is that this prosecution was brought at the direction of President Trump to silence a constant critic of him and, “we think [Halligan’s appointment] is an unlawful appointment.” He was less sure about what he would file ten days later, on October 30, but suggested a Bronston literal truth defense motion (the basis for which Anthony Trenga threw out one charge against Igor Danchenko in this same district), a grand jury abuse motion, and an outrageous government conduct motion.

Selling a Lemons CIPA dodge

Lemons used Fitzgerald’s explanation that he would like to exclude 31 days of time from Speedy Trial to insinuate Fitzgerald had suggested Comey needed time to prepare for trial, only to then confess he was not prepared to prosecute the case. “Part of it is obviously honoring the defense’s request for the later trial date and understanding and wanting them to be — have the time adequate to prepare for trial, but also in — it’s no discredit to Mr. Fitzgerald. He’s not — and we’re just getting our hands around the discovery as well.” But he also pointed to “a large amount of discovery which also includes classified information” for the request for more time.

Let me interrupt and note that the most recent ABC piece disclosing concerns the EDVA prosecutors had about the case included the amount of information the government would have to share with Comey.

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.

As described, this is not about classified information (though I don’t doubt there’s a fair amount of materials on the SVR files believed to be at the heart of Dan Richman’s involvement). So it seems likely that Lemons is leaning on classified information as a way to stall.

Nevertheless, my sense is this is when things began to get a bit tense in the hearing, not least because it made it important for Fitzgerald to put on the record how unprepared the prosecution team was, but also because it raised the hackles of an EDVA judge about an interloper coming in and refusing to comply with rocket docket considerations.

Fitzgerald used it as an invitation to repeat that prosecutors had not yet told him who the people described in the indictment were (a complaint he made in different form at least three times). But — as a guy who has presided over some of the most difficult CIPA processes in history — he also scolded prosecutors for putting the cart before the horse, charging before making sure spooks would be willing to declassify intelligence to make a criminal case (not coincidentally, something John Durham did too).

We would have thought in the normal course when the government brings a case, they address the classified information issues ahead of time, coordinate within the national security section, and have a plan. And, frankly, we feel like in this case, the cart may have been put before the horse, and my client would not like to wait around unnecessarily while they go through things we think that should have been done before.

For his part, Nachmanoff used the CIPA excuse as an opportunity to order prosecutors to get Fitzgerald clearance as quickly as possible and to conduct the fastest CIPA process in history. “Either it’s not relevant to the case or it can be declassified or we will go through the fastest CIPA process you have ever seen in your lives.”

Donald Trump’s clearance tantrums

There are two surprises that may arise out of this focus on CIPA, even ignoring Nachmanoff’s impatience with it.

Nachmanoff only described getting Fitzgerald clearance (he noted that Jessica Carmichael, the only attorney of the five present who was currently practicing in EDVA, “has had a number of national security cases in this district in the last few months”). He did not mention Comey getting clearance.

That said, it is customary in CIPA cases to give a defendant clearance if he had clearance to access the materials at issue in a case during the period of the alleged crime — that’s the standard adopted, for example, by Aileen Cannon in the stolen documents case.

If Comey wanted access to this material — and there’s good reason to argue he should — then it might create a conflict between prosecutors (including Lindsey the Insurance Lawyer) and Trump, because one of the areas where a purportedly unreviewable Presidential authority has come under challenge is in legal cases, where the government has tried to moot a legal case by denying someone clearance.

That is, this trial might force Trump to agree to give Comey clearance, something he has stripped from all his adversaries.

But Comey might have reason not to pursue it: because of the even more abusive case Jack Eckenrode is attempting to build in WDVA.

Jack Eckenrode, WDVA, and John Durham’s discovery woes

Last week, one of the FBI agents purged by Kash Patel, Michael Feinberg, described that one of two FBI agents on this case was, “John Durham’s factotum and enforcer,” which via this link he confirmed to mean Jack Eckenrode.

The significance of Eckenrode’s role in this case has received far too little attention. As late as Scooter Libby’s indictment, Eckenrode was a key investigator on Fitzgerald’s CIA Leak case team. But then, as multiple people got leaked information about Karl Rove being imminently indicted, he wasn’t anymore. He and Fitzgerald (and Comey, as the link above notes) go way back, but there’s also a decent chance that Fitzgerald has reasons to know that Eckenrode leaked details of that earlier investigation to pressure him to expand the charges.

And, as Feinberg noted, Eckenrode was Durham’s right hand man, which makes Durham’s testimony (also reported by ABC) pretty awkward.

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.

Federal prosecutors in Virginia met remotely with Durham in August to understand the findings of his investigation, according to sources familiar with the meeting, and his conclusions raise the prospect that Durham — who was once elevated by Trump and other Republicans believing he would prosecute high-level officials involved with the investigation of the president’s 2016 campaign — could now become a key figure aiding Comey’s defense.

But Eckenrode is also, per the NYT, the lead investigator in an investigation in WDVA premised on what seems to be a theory that FBI agents hid documents in a burn bag to protect people like Comey.

And that suggests a certain logic to the charges as originally packaged (which Lindsey the Insurance Lawyer fucked up and caused to be released). Lindsey the Insurance Lawyer, coached by Eckenrode, first tried to get the grand jury to approve three charges:

One false statement charge claiming Comey lied when he couldn’t remember what Durham and Eckenrode, with the collusion of Kash Patel and John Ratcliffe, falsely packaged up into a “Clinton Plan” to frame Donald Trump (this is the one the grand jury rejected)
Another false statement charge claiming Comey lied when he answered (he didn’t really) that he had not authorized anyone to speak to the press anonymously for him, which at some point meant Dan Richman sharing information about SVR documents suggesting that Loretta Lynch was helping Hillary dodge the email investigation
An obstruction charge arising out of those lies (and now, the single charged lie)

That is, the original theory of the case (and unless the new prosecutors pull a wild headfake to try to salvage the case, still the theory) was directly relevant to the WDVA case. The idea being, you “prove” in EDVA that Jim Comey was lying in 2020 about his knowledge of multiple SVR documents, which you then use to build a case in WDVA that the FBI was conspiring to protect an effort in 2016 to focus on Trump to the exclusion of Hillary.

This is a direct replay of the strategy that Durham (who debunked the current charges) adopted (working with Eckenrode) in 2021, when he attempted to hang conspiracies around two thin false statement cases against Michael Sussmann and Igor Danchenko. You use the false statement to prove a motive for the conspiracy.

You also use one case — as Durham did with privilege challenges in the Sussmann case to obtain records that might have been pertinent to the Igor Danchenko case if they had said what his fervant fever dreams imagined they might — to attempt to obtain evidence for the larger case.

What’s worth knowing, though, is how classification stymied Durham’s case but also — thus far — protected his collusion with Russian spies. First, in 2020 (literally leading up to the Jim Comey testimony for which he has been charged), Ratcliffe and Kash “declassified” a bunch of documents in a misleading way to substantiate their “Clinton Plan” fabrication, pretty much reversing the meaning of the documents. That then formed the backbone of the Durham investigation. But Durham only shared still-classified SVR documents with a few subjects of the investigation, like Julianne Smith. He showed targets, like Peter Strzok, the misleadingly redacted documents (indeed, that’s what the question to Comey they wanted to charge would have been based on). There was a CIPA process with Sussmann, but I’m convinced they didn’t give him adequate substitutions, because otherwise he would have argued that they were framing him with fabricated documents.

The important detail is that Durham tried to coerce testimony from targets, undoubtedly including Comey, that would have required granting them clearance for such testimony. Witnesses could and some did avoid testifying by refusing to accept clearance — the same thing that the US Attorney in Philadelphia is using with a credulous Marc Caputo to excuse his inability to charge John Brennan.

Of course, to the extent that prosecutors who know none of this background have been dragged into this at the last minute, they may be forced to provide Fitzgerald, at least, with the proof that Eckenrode is still chasing decade old Russian disinformation. They’re just getting their hands around the discovery as well, Lemons explained.

They may in fact hand Fitzgerald evidence that Eckenrode committed the crime he wants to frame Jim Comey of doing.

Lindsey Halligan won’t say who she represents

There were two other details of from the arraignment that didn’t get enough attention, in my opinion.

First, here’s how the introductions went down. Lemons, the AUSA taking the lead, spoke first, greeting Judge Nachmanoff and describing his client in the standard manner. “Good morning, Your Honor. Tyler Lemons for the United States government.”

Lindsey the Insurance Lawyer went next. Not only did she not greet the judge, but … she didn’t tell us who she represents. “Lindsey Halligan,” was all she said.

After Gabriel Diaz introduced himself in the normal fashion (greeting, then describing that he represents the US), Fitzgerald gave the answer that made all the press reports (probably by design): “Good morning, Your Honor. Pat Fitzgerald, and it’s the honor of my life to represent Mr. Comey in this matter.”

Carmichael, the only one currently practicing in EDVA, also gave the standard answer. “Good morning, Your Honor. Jessica Carmichael for Mr. Comey.”

Given that the only times Lindsey the Insurance lawyer has represented anyone in federal court before, she introduced herself as representing Donald Trump, perhaps it was just safer for Lindsey the Insurance Lawyer to say as little as possible.

More interesting, however, is that Nachmanoff was not playing dumb to the problems with Lindsey the Insurance Lawyer’s presence. After Fitzgerald described his plan to challenge Lindsey the Insurance Lawyer’s appointment, Nachmanoff described — having already checked — what the procedure would be. “[A]ny motion to disqualify Ms. Halligan will be heard by an out-of-district judge,” Nachmanoff explained. “That is the process that has been followed in New Jersey and Nevada, and the Court will follow that process here, which means that a request will be made to Chief Judge Diaz of the Fourth Circuit to appoint an out-of-circuit judge only to address that issue.”

He came prepared for this issue.

As Nachmanoff moved onto a discovery order, Fitzgerald pointed to a piece of discovery he wants right away. “[W]e would like to see the appointment papers forthwith. We don’t want to be shooting at the wrong target” on the disqualification motion. Fitzgerald, who has had all manner of DOJ appointments in his day (once, on Jim Comey’s orders) noted “that most appointment papers for United States attorneys are a page or two, we would ask if we could have that forthwith” so that they could start drafting their motion.

In multiple cases when the Trump Administration tries something funny (as with the Illinois invasion, in which DOD fucked up the authorizing paperwork at least three times), they often don’t have their paperwork in order.

Which is to say, even before the reports out today that Lindsey didn’t consult with ODAG on public integrity concerns about indicting Tish James, DOJ may not have their ducks in a row.

Even as it is, Trump’s indictments of Comey and James have only worked within the narrow bubble of his frothers. In the wider world, they have focused increasing attention on his corruption. But by putting two prosecutors with absolutely no understanding of this background, to say nothing of the real ethical hazards involved in this case, they made it much easier for Fitzgerald to flip the table, to appear as if he is the one doing the prosecution, not them.

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How Kash Patel and Pam Bondi became Slaves to Stephen Miller

October 8, 2025/52 Comments/in emptywheel /by emptywheel

When Pam Bondi and Kash Patel had Jim Comey charged two weeks ago, they may have signed their own arrest warrants.

The media focus, since the indictment, has been on the ominous chilling effect this would have on Trump’s opponents — though as always, journalists ignored the politicized prosecutions that have gone before.

The damage done to rule of law by replacing career prosecutors with Trump defense attorneys for the sole purpose of charging a political target is enormous. No doubt about it.

But charging former FBI Director Jim Comey on flimsy false statements charges crosses a rubicon in a different way, one that may be just as disastrous for American democracy.

Charging made it easy to charge top law enforcement officials — any former law enforcement officers — whom Trump ousted for political reasons.

Indeed, almost immediately after the Comey indictment, Kash turned towards manufacturing the very same basis — alleged lies to Congress — to charge Chris Wray, his immediate predecessor.

Kash released after action reports from January 6 to HJC which in turn shared them, complete with warnings that the documents were not for external dissemination, with John Solomon, who turned complaints including a heavy handed focus from the US Attorney’s office on misdemeanors into a story about “274 agents deployed to the Capitol in plainclothes and with guns after the violence started but with no clear safety gear,” which in turn led to conspiracy theories about “Fedsurrection,” which Donald Trump blew up in a lie-ridden post on Truth Social that explicitly drew a connection between Comey and Chris Wray.

Even when Kash tried to tamp down the conspiracy theories he had sown and his boss had accelerated, he still included several lies: that Wray lied, that this was about crowd control, that running to the scene of a terrorist attack in progress would violate FBI rules.

The FBI responded on Saturday to a report that 274 plainclothes agents were at the U.S. Capitol riot on Jan. 6, 2021, clarifying the role of bureau personnel while still blasting former Director Christopher Wray.

While the agents were on hand, they were sent in after the riot had begun to try to control the unruly crowd, officials told Fox News Digital. That is not the proper role of FBI agents, and Wray was not forthcoming about what happened when he testified numerous times on Capitol Hill, Director Kash Patel said.

“Agents were sent into a crowd control mission after the riot was declared by Metro Police – something that goes against FBI standards,” Patel told Fox News Digital. “This was the failure of a corrupt leadership that lied to Congress and to the American people about what really happened.”

And so Kash, in a desperate bid to feed conspiracies like those that got him where he is, colluded (heh) in the framing of charges against a second FBI Director.

He did so, as Pam Bondi did, under a great deal of pressure to deliver.

The pressure against Bondi erupted in public, in the post Trump sent addressing her directly.

Two things suggest the text was meant to be private. It had far fewer lies than Trump’s public posts. And he also alluded to the pressure he was under — the 30 statements and posts complaining about “all talk, no action” — a testament to the impatience of his own mob. Other reports describe the pressure applied to Bondi in private.

The pressure on Kash — and its source — has been just as real. The lawsuit filed by top FBI agents describes how Stephen Miller demanded politicization at FBI to match that Emil Bove was pursuing at DOJ.

On or about January 27, 2025, Bove requested that Driscoll and Kissane “stay behind” following their daily morning briefing. At that “stay behind” meeting, Bove stated that he was receiving pressure from White House Deputy Chief of Staff Stephen Miller to see “symmetrical action at the FBI as had been happening at DOJ.” Bove made clear that he and Miller wanted to see personnel action like reassignment, removals, and terminations at the FBI, similar to the firings and reassignments of senior attorneys at DOJ that had occurred since January 20, 2025.

It tracks how Patel and Dan Bongino attempted to protect the plaintiffs (both, of course, desperately want to be accepted within the fraternity of FBI officers), even defending Steve Jensen on Maria Bartiromo’s show.

125. Both Patel and Bongino lamented to Jensen that they were spending “a lot of political capital” to keep him in the ADIC position, a position that Jensen had not sought in the first place.

[snip]

I want the American public to realize what we did. That man was in a position where he literally fought back against the machine who was saying, “we want to politicize this event, we want to politicize this event.” And at the end of the day, remember, Maria, there’s a chain of command here. So you can fight back your chain of command to a certain degree before they fire you. And Steven Jensen and other folks were promoted because they embody what the American public demands of FBI agents.

The whole time, FBI’s leaders were terrified the White House would learn Jensen still had power.

143. Approximately two days into his leave, on July 16, 2025, at approximately 7:20 a.m., Jensen received a call from Bongino. Bongino began the call by sternly telling Jensen that he had to “use better judgment,” explaining that the SAC of the Philadelphia Field Office had sent out an email to various other SACs about the SAC Advisory Committee indicating that Jensen would assume the vice chair position that had been left vacant by the recent departure of the Richmond SAC. The SAC Advisory Committee is an organizational structure within the FBI that SACs from across the country rely on to channel communication and concerns to FBI leadership. It is not a formal organization and is, in effect, an additional duty for those who volunteer for the position. The Philadelphia SAC had asked Jensen to fill the vacancy left by the Richmond SAC and, apparently, Bongino had learned of an email announcing this.

144. During this phone call, Bongino warned him that if the White House learned that Jensen was on an advisory committee, it would be “problem” for Jensen.

After months of refusing to fire the Agents, Kash ultimately did, in August, explaining that his own job depended on doing so.

Patel explained that there was nothing he or Driscoll could do to stop these or any other firings, because “the FBI tried to put the President in jail and he hasn’t forgotten it.” Driscoll indicated his belief that Patel’s reference to his superiors meant DOJ and the White House, and Patel did not deny it.

More recently, a story about Signal texts sent between a top Pete Hegseth aide and Stephen Miller’s included the commentary of the latter, Miller deputy Anthony Salisbury, describing that Kash’s firing of FBI agents who had taken a knee to deescalate during the George Floyd protests was “how Kash survives.”

In a separate exchange, Salisbury celebrated FBI Director Kash Patel’s decision to fire several agents who were photographed kneeling during a 2020 protest. He suggested Trump would approve of the action, then insulted Patel.

“This is how Kash survives,” Salisbury wrote. “He will do this stuff for the man but day to day giant douche canoe.”

To survive, Kash the giant douche canoe has to “do this stuff for the man.”

The pressure on Kash is particularly intense. The indictment of Comey, Kash’s more aggressive purges, his effort to perp walk Comey — they all come in the wake of the installation of former Missouri Attorney General Andrew Bailey as babysitter for Kash and Dan Bongino, a constant threat that he would be fired.

[A]llies of President Trump and Patel’s harshest critics have begun to circulate word that contingency plans for Patel’s ouster are forming. They also claim his hopeful successor, Andrew Bailey, made clear that he would not leave his post as Missouri’s AG – or abandon his aspirations to run for state governor – only to serve as Patel’s number two.

Under the Federal Vacancies Reform Act of 1998, Bailey, who starts at the bureau on September 15, would be eligible to fill the FBI director post – should it become vacant – after he has been employed by the FBI for at least 90 days.

Multiple sources close to Trump acknowledged the president was not thrilled with some past episodes of Patel’s performance – including a public feud with AG Bondi over the administration’s handling of the Jeffrey Epstein case. One senior White House official involved in personnel decisions also framed Patel’s botched communications during the manhunt for Charlie Kirk’s assassin as something Patel likely wished he could do differently, if he could do it all over again. Trump did not call for any action to be taken in response to it, the person said.

Patel’s purported off-ramp, which the White House denies, would not involve his firing but a reassignment to another administration role, according to multiple people who described it.

Sure, the plan now is to make Kash an ambassador to some faraway country once Bailey can become Director in December, as if he were Don Jr’s inconvenient ex. But the only thing that keeps Kash from becoming what Comey and Wray are — FBI Directors that Trump chose to put or retain at the Bureau but then fell out of favor and so were ousted — is his continued ability to feed the insatiable viciousness of Trump, the Wormtongue who increasingly controls access to him Stephen Miller, and Trump’s rabid mob.

And when that moment comes, it will be child’s play for the next guy to prove his loyalty by charging Kash and/or Bondi, citing the precedent of Comey (and Wray, if he’s indicted by then).

I’ve already noted that, by charging Comey, Kash provided evidence that this statement to Mazie Hirono was false.

Senator Hirono (02:18:49):

Do you plan to investigate James Comey, who’s on your list?

Kash Patel (02:18:54):

I have no intentions of going backwards-

Kash has been doing Trump’s dirty work for so long there are a slew of other potential charges, starting with both January 6 and the stolen documents case.

The same is true of Pam Bondi, who got her start with Trump by taking campaign donations and then shuttering an investigation into Trump’s fraudulent university.

But like Kash, her slavering performance in front of Senate Judiciary Committee also provided fodder for charges on the same standard as Comey. Not only did she tell gratuitous lies — such as that Alex Padilla had stormed Kristi Noem’s press conference — but she made more material statements, such as that the decisions on the Tom Homan bribery investigation (which she seemed to attribute to Todd Blanche, who was confirmed a month after she was) predated her confirmation.

That’s is the thing about corruption. It is the price of admission and the reward for loyalty.

But it also a double-edged sword when you fall out of favor.

I don’t know whether Kash and Bondi are kidding themselves about what a bad precedent this is for their own future. I don’t know whether they believe their past loyalty — something Comey and Wray never performed — will exempt them from the treatment to which they’re subjecting Comey. But the thing about irrational, increasingly unfit authoritarians guarded by an even more ruthless henchman is that demands for loyalty only keep going up.

Ah, but look on the bright side, Kash, Bondi!

Disfavored Trump aides have not — yet — started falling out of windows, like they do in Vladimir Putin’s Russia!

Update: Here’s how a WSJ story on the politicization of DOJ ends.

Privately, Trump has acknowledged that he believes Blanche is a solid lawyer and Bondi appears great on TV, but has continued to complain to aides about the pace of the cases, even after the Comey indictment. Aides have reminded him about work in progress.

“She’s moving too slow,” Trump has said about Bondi, according to administration officials.

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Will Jim Comey’s Prosecution Prove Kash Patel Lied to Senate Judiciary Committee?

September 28, 2025/11 Comments/in emptywheel /by emptywheel

As I mentioned here, ABC reported that the lie charged in the Jim Comey indictment pertains to whether he authorized Dan Richman to share information anonymously, not whether he authorized Andrew McCabe to do so.

Sources told ABC News that “PERSON 1” is Clinton and “PERSON 3” is Richman, a longtime law professor who — as ABC News previously reported — met with federal prosecutors last week after being subpoenaed in the matter.

Charlie Savage has the best piece on the likely theory of the indictment. I’d like to expand on that to explain why I think it more likely we’ll obtain proof that Kash Patel lied to Congress as a result of this prosecution than that Jim Comey did.

As you read the following remember that Kash assured the Senate Judiciary Committee — including in this exchange with Mazie Hirono — that he would not “go[] backwards” to investigate Jim Comey.

Senator Hirono (02:18:49):

Do you plan to investigate James Comey, who’s on your list?

Kash Patel (02:18:54):

I have no intentions of going backwards-

Except it appears that Kash did precisely that.

The indictment appears to accuse Comey of authorizing Dan Richman to serve as a source for this article on the Hillary and Trump investigations, especially this passage about the SVR document purporting to report that Loretta Lynch had told Amanda Renteria she would intervene to protect Hillary (the charge the grand jury rejected was also focused on these SVR documents, which I explained here).

During Russia’s hacking campaign against the United States, intelligence agencies could peer, at times, into Russian networks and see what had been taken. Early last year, F.B.I. agents received a batch of hacked documents, and one caught their attention.

The document, which has been described as both a memo and an email, was written by a Democratic operative who expressed confidence that Ms. Lynch would keep the Clinton investigation from going too far, according to several former officials familiar with the document.

Read one way, it was standard Washington political chatter. Read another way, it suggested that a political operative might have insight into Ms. Lynch’s thinking.

Normally, when the F.B.I. recommends closing a case, the Justice Department agrees and nobody says anything. The consensus in both places was that the typical procedure would not suffice in this instance, but who would be the spokesman?

The document complicated that calculation, according to officials. If Ms. Lynch announced that the case was closed, and Russia leaked the document, Mr. Comey believed it would raise doubts about the independence of the investigation.

[snip]

But some time after that meeting, Mr. Comey began talking to his advisers about announcing the end of the Clinton investigation himself, according to a former official.

“When you looked at the totality of the situation, we were leaning toward: This is something that makes sense to be done alone,” said Mr. Steinbach, who would not confirm the existence of the Russian document.

Former Justice Department officials are deeply skeptical of this account. If Mr. Comey believed that Ms. Lynch were compromised, they say, why did he not seek her recusal? Mr. Comey never raised this issue with Ms. Lynch or the deputy attorney general, Sally Q. Yates, former officials said.

Importantly, Richman was a named source for the story, which will make it hard to prove that Comey authorized Richman to serve as an anonymous source. (Hilariously, Pat Fitzgerald’s meticulous mapping during the Scooter Libby trial of the difference between an “anonymous” source and a “background” source might, by itself, defeat this case.)

As part of an investigation into the sources for this story (which targeted Jim Baker closely), John Durham seems to have discovered either details of how the FBI authorized people to weigh in on stories or that Dan Richman served as a cut-out for Comey, I’m not sure which.

The reopened Arctic Haze investigation was biased against Comey

That discovery led DOJ to reopen a bunch of investigations into 2017 stories pertaining to the Russian investigation, documented in these filings, which I wrote up here.

As part of that, DOJ investigated whether Richman was the source for the SVR details in the April 2017 NYT story. Before closing the investigation, DOJ asked Comey for the phone he used at the time, and found nothing relevant.

[redacted] on June 29, 2021, Comey provided consent, via his counsel, for the FBI to conduct a limited search of his Apple iPhone. The FBI conducted a forensic examination of the telephone. The examination indicated the telephone contained four voicemail messages, four instant messages, two email messages, and 51 images from December 1, 2016 to May 1, 2017. None of this material contained information relevant to this investigation.

They also interviewed Richman, who among other things, told the FBI that, “Comey never asked him to talk to the media” (though it appears earlier, as described in redacted passages, he may have said Comey did).

The substance of the November 2019 Richman interview confirmed that Comey had told Richman bits about the SVR documents, but that when Mike Schmidt came to Richman and asked him about it in January 2017, Schmidt already knew more about the documents than Richman did.

On November 22, 2019, the Arctic Haze investigative team interviewed Richman. According to Richman, Comey and Richman talked about the “hammering” Comey was taking from the media concerning his handling of the Midyear Exam investigation. Richman opined Comey took comfort in the fact Richman had talked to the press about his feelings regarding Comey’s handling and decision-making on the Midyear Exam investigation. Richman claimed Comey never asked him to talk to the media.

According to Richman, he and Comey had a private conversation in Comey’s office in January 2017. The conversation pertained to Comey’s decision to make a public statement on the Midyear Exam investigation. Comey told Richman the tarmac meeting between Lynch and Clinton was not the only reason which played into Comey’s statement on the Midyear Exam investigation. According to Richman, Comey told Richman of Lynch’s characterization of the investigation as a “matter” and not that of an investigation. Richman recalled Comey told him there was some weird classified material related to Lynch which came to the FBI’s attention. Comey did not fully explain the details of the information. Comey told Richman about the Classified Information, including the source of the information. Richman understood the information could be used to suggest Lynch might not be impartial with regards of the conclusion of the Midyear Exam investigation. Richman understood the information about Lynch was highly classified and it should be protected. Richman was an SGE at the time of the meeting.

According to Richman, he and Schmidt had a conversation shortly after the meeting with Comey in or around January 2017. Richman claimed Schmidt brought up the Classified Information and knew more about it than he did. Richman was pretty sure he did not confirm the Classified Information. However, Richman told the interviewing agents he was sure “with a discount” that he did not tell Schmidt about the Classified Information. Richman did not know who gave Schmidt the Classified Information. Richman acknowledged he had many discussions with Schmidt about the article as an SGE and even after he resigned as an SGE. Richman acknowledged he contributed more to the article than what was attributed to him by name. Richman also stated he knew Schmidt talked to numerous other government sources for information on the article. [my emphasis]

DOJ ultimately decided they couldn’t charge either Comey or Richman, because even if Richman were a source, he would be a confirmatory source, which DOJ had never charged (they claim, though I think that’s incorrect).

They did some more interviews but — and this may sink EDVA’s case even if everything else doesn’t — they only interviewed people who would have a motive to protect Comey, not those with a motive to slam him.

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. All of these officials denied providing the Classified Information to the New York Times. [my emphasis]

At a time when they could have charged this, Bill Barr’s DOJ assumed that the original detailed sources for the SVR story must be Comey allies.

There are at least two reasons why that was a dumb theory.

First, as the DOJ IG Report on this that investigators read — but didn’t explain in the unredacted parts of the case file — Comey and people around him believed the claims in the document were “objectively false” Comey even alluded as such in his 2018 OGR testimony (also cited in this closing document) — which Kash Patel would know personally. “So far as I knew at the time, and still think, the material itself was genuine, which is a separate question, though, from whether it was what it said was accurate.”

This entire passage is premised on the document being true.

More importantly, the sources for it are pissed off that Jim Comey announced the end of the Hillary investigation himself.

Plus, there’s no mention that one of these two SVR documents said that Jim Comey was going to throw the election for the Republicans. If someone were really familiar with the documents themselves, rather than just discussions of them, you’d expect they would suggest that maybe Comey was overcompensating out of worry that he would be deemed partial to Republicans.

The blind spot about that part of the SVR documents, notably, is replicated in the HPSCI document on which Kash was the original author.

HPSCI simply leaves out the Jim Comey allegation in one of the SVR reports, which if true, would explain why Putin wouldn’t have to (and didn’t) dump damning intel close to the election: Because Putin believed that “Comey is leaning more to the [R]epublicans, and most likely he will be dragging this investigation until the presidential elections,” something that turned out to be true. In other words, they cherry pick which Russian spy products they choose to parrot, one of the sins they accuse the ICA team of, but they do so with years of hindsight that made clear how foolish that was.

The entire right wing, including the current FBI Director, have vast blindspots about these documents (Kash even seems to believe they’re not fabricated!!). And those blindspots appear to have been replicated in the investigative choices for that investigation. That means the selective prosecution of this prosecution is built on top of the selective investigation of the Richman investigation.

Nevertheless, the investigation was closed without charging Richman for confirming classified details.

Kash did look backward

Where this becomes proof that Kash lied to the Senate Judiciary Committee, claiming that “I have no intentions of going backwards” to investigate Comey is that there’s no reason to reexamine the issue (except that Comey answered a question focused on Andrew McCabe on which the statute of limitations has not yet expired).

The leak itself, if it could be pinned on Comey and Richman, could not be charged. Bill Barr did not reopen the investigation after seeing Comey’s September 2020 testimony, even though he remained busy trying to discredit Crossfire Hurricane.

While investigators this time around are chasing a parallel theory that the FBI covered up their focus on SVR documents that only exists in the fevered imaginations of people like Kash (that is, if Comey actually lied about any of this it would be material to their fevered conspiracy theories in the other part of the investigation), it would not have been material at the time, because Ted Cruz was seeking a gotcha about his fevered imagined conflict between McCabe and Comey’s testimony. The underlying 2017 question from Grassley incorporated Richman, but if Cruz’s did, there’s no hint of that. He explicitly focused on McCabe.

Nor would it be material to the Durham investigation. The Durham Report actually says that Comey refused to be interviewed, pointing instead to testimony just like this. So if there’s something in this exchange that would be usable, Durham didn’t do so.

Nevertheless, somehow, the FBI decided to go revisit this gotcha question from five years ago, which — even if Comey were lying — would not change the public understanding of Comey’s self-righteous justifications for his decisions in the Clinton investigation one bit. Outside the fevered imagination of people like Kash, or the decision to look backward to investigate a guy listed on your enemies list, there’s no reason you get to these files.

Now, Comey may have opportunity to ask Kash, under oath, how the FBI decided to go unpack the closing file for an investigation closed over three years earlier — which is why I say we may get proof that Kash lied to SJC.

But the only new information that I could conceive of that would lead the FBI to reconsider this is if the FBI spied on the NYT and found materials from Mike Schmidt saying that Richman was his source and Comey told him to leak it. Which, if it happened, would be a ten times bigger scandal than we’ve already got.

I would be shocked if Comey didn’t ask for some explanation — other than the revenge to which Trump confessed publicly — behind the predication of this investigation. I would be unsurprised if Judge Michael Nachmanoff, who is presiding over the case, offered him that opportunity.

And if he does, Kash is going to be stuck trying to make up some excuse that doesn’t amount to a confession he lied, as a private citizen, to SJC as part of his effort to get the job he’s using to weaponize government against Trump’s enemies.

Kash Patel wrote a book in 2023 targeting Jim Comey.

When asked whether he intended to use the FBI Director position to investigate Jim Comey, Kash claimed, under oath, that he had no intentions of going backward to do so.

And then he proceeded to do just that.

The evidence that Comey lied to the Senate Judiciary Committee is paper thin.

The evidence that Kash lied to the Senate Judiciary Committee is abundant.

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Fridays with Nicole Sandler

September 26, 2025/59 Comments/in emptywheel /by emptywheel

And here’s the picture of Scattery Island I referenced. Here’s a story about Moneypoint halting coal burning.

Listen on spotify (transcripts available)

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Will Ted Cruz Go to Prison for the Lies He Told as Part of the Jim Comey Indictment?

September 26, 2025/46 Comments/in emptywheel /by emptywheel

Let’s talk about all the lies that someone at EDVA would have to wade through to actually convict Jim Comey.

Lindsey Halligan’s disclaimer of signing the Comey indictment

First, there’s the weirdness with the indictment itself. As NBC and WaPo reported from the courtroom, Lindsey Halligan actually handed the magistrate judge, Lindsey Vaala, two charging documents. When Vaala asked what was going on, Halligan said she did not see the second one. Vaala noted that she had signed the document.

There was some confusion in the courtroom and from Judge Lindsey Vaala, who appeared puzzled by the multiple charging documents filed for one case. Vaala asked why there were two documents in the same case. Halligan told her, “I did not see,” to which Vaala replied, “It has your signature on it.”

Vaala then had Halligan make handwritten changes to one of the documents and said both documents would be uploaded to the docket for the record.

That may well lead to further scrutiny. One of the two charging documents is the indictment that includes the charge that grand jurors rejected.

But the only writing on either document that appears to have been added is where (marked with the red box) someone noted, “count 1 only” (which is, indeed, the charge that was dropped). But there’s another irregularity with the document. The rest of it (and the indictment that was filed) looks like it was scanned — with a line down the center and a shadow, as I’ve marked in red.

But the second page lacks both of those things.

And both the charge on page two and the one on page three are called, “COUNT TWO.” Which may suggest someone just put the second page of the failed indictment in between the two pages of the one approved by the grand jury.

All that’s enough that Comey might ask questions about the conduct of the grand jury — something he normally would not be able to do. Given Halligan’s claim she never saw the indictment, it also might raise questions about whether Halligan signed the indictment before or after the grand jury approved it.

And then Halligan would have to explain why she never saw the indictment that she herself signed. Because she’s the only attorney on this filing, she would have to explain the irregularities herself.

That’s not the only question Halligan will face.

It’s not entirely clear under what legal authority she is play-acting as US Attorney. But when Alina Habba was challenged for play-acting as US Attorney after her temporary period expired in New Jersey, a judge ruled that the interim appointment is per position, not per person, meaning that Erik Siebert — the guy Trump fired on Friday — would already have used up the possibility of such an interim appointment in May.

In other words, Halligan may not be US Attorney at all, and unless she fixed that problem by Tuesday, the entire thing might just disappear.

In any case, while EDVA has a rocket docket (meaning this would otherwise go to trial quickly), Halligan’s temporary status could become be a problem before this goes to trial if Comey mounts a vindictive prosecution challenge (LaMonica McIver’s vindictive prosecution challenge is only now fully briefed, three months after her indictment). Then EDVA could be left with an indictment charging Jim Comey but no one willing to stand in a courtroom to prosecute it.

The vindictive prosecution challenge

Even if Halligan survived that long, it is exceedingly likely that Comey would not just get to present a vindictive prosecution claim, which Trump has confessed to over and over, but also to ask for discovery on how that all came about. If granted, I’m sure he’d ask to:

Depose Kash Patel, both about his children’s book naming Jim Comey a “government gangster” but also his conduct in this and related Comey investigations.
Depose Siebert, who decided there wasn’t even probable cause to charge this, much less the ability to prove it beyond a reasonable doubt.
Depose Todd Blanche, who reportedly agreed with Siebert and advised Trump not to fire Siebert.
Depose Pam Bondi because why the fuck not??
Depose Halligan.

Just deposing Kash alone would be a huge problem, because he only got confirmed by lying to the Senate about prosecuting the people in his Government Gangster book.

This indictment proves Kash lied, not that Comey did.

It proves something else, too.

Halligan tried to charge Comey with two lies. I’ll come back to the one that survived — basically, the indictment accuses Comey of lying in 2017 when he said he had never authorized anyone to leak information anonymously to the press.

The Russian disinformation that Chuck Grassley falsely claimed was a Clinton plan

The one the grand jury rejected charged Comey with lying when he said he didn’t recall being told (which the indictment transcribes as “taught”) this memo.

There are multiple problems with the question — posed shortly after Kash Patel and John Ratcliffe released it in 2020.

First, we now know that the “plan” was in fact Russian disinformation sown by fabricating several emails. Investigating based off this document commits precisely the crime that John Durham investigated for years: investigating someone based on something you know to be false.

Worse still, according to every witness that Durham interviewed, no one remembered receiving this memo at all. It’s possible Kash thinks he has found a copy (that seems to be part of what he’s investigating in WDVA), but Durham never did.

Finally, and most insane of all, as I noted here, the redactions in this document and the representation Kash and Ratcliffe made about what it is appear to be badly misleading. That is, this referral appears to be a referral about the Russian plot targeting Hillary, not about Hillary. It is only right wing fever dreams and deceitful redactions that made it into something else.

If Comey had seen this document, he would not remember it in the way that he was asked about it.

So not only is it ridiculous to charge someone for not remembering something that wasn’t that big a deal, but it’s crazier still to charge someone for not remembering a document that you’ve redacted in misleading fashion and then described as the opposite of what most people understood it to be.

All that wasn’t charged, but nevertheless, according to John Durham’s logic at least, Kash committed several crimes by investigating this at all.

Jim Comey will get to expose Ted Cruz as a liar, again

Which finally brings us to what did get charged, part of the exchange above.

1. On or about September 30, 2020, in the Eastern District of Virginia, the defendant, JAMES B. COMEY JR., did willfully and knowingly make a materially false, Fictitious, and fraudulent statement in a matter within the jurisdiction of the legislative branch of the Government of the United Stales, by falsely stating to a U.S. Senator during a Senate Judiciaiy Committee hearing that he, JAMES B. COMEY JR., had not “authorized someone else at the FBI to be an anonymous source in news reports” regarding an FBI investigation concerning PERSON 1.

2. That statement was false, because, as JAMES B. COMEY JR. then and there knew, he in fact had authorized PERSON 3 to serve as an anonymous source in news reports regarding an FBI investigation concerning PERSON 1.

Before Cruz asks the question that got charged, he asked one after another question based on false premises. Comey had to correct the following Cruz lies:

The FBI did not surveil the Trump campaign
The Carter Page IG Report did not show that FBI lied to the FISC 17 times
Cruz misrepresented the email that Kevin Clinesmith altered (it was not used in any submission and Cruz misstated the import of the change)
The FISC was alerted to the political source of the Steele dossier
Cruz falsely claimed that Comey stated that the FISC was informed that the DNC paid for the dossier
Cruz misstated what Comey said about his own knowledge about the funding

Cruz also misstated the facts about Igor Danchenko, but Comey didn’t know enough to correct those.

The actual charged lie starts after 6:30 in the video. Cruz reads Comey’s testimony from 2017, in which he responded to a question from Chuck Grassley whether he had “ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation?”

Cruz then made another misstatement — three actually, that Andrew McCabe, “has publicly and repeatedly stated that he leaked information to the Wall Street Journal and you were directly aware of it and that you directly authorized it.”

Comey did not correct Cruz this time, but he said he stood by the testimony he gave in 2017.

Already, what Lindsey the Insurance Lawyer said in the indictment is a stretch. Comey did not say the words quoted in the indictment. He said only he stood by his earlier testimony. (Effectively, this is an attempt to charge Comey for something he said 8 years ago.)

If she’s thinking this is about McCabe, it also builds on Ted Cruz’s lie. First of all, the IG Report on McCabe (and his public comments) was about the Clinton Foundation — not Clinton, but the Foundation, not Person-1 but the foundation ran by her spouse.

Second, it was not a leak, anymore than Kash Patel’s non-stop frequently inaccurate blabbing on Xitter amount to leaks. It was an authorized conversation with the press.

Third of all, the specific authorization in this case was from McCabe to Lisa Page to serve as a source; it didn’t involve Comey.

McCabe thereafter authorized Special Counsel and AD/OPA to talk to Barrett about this follow-up story.

Where McCabe’s testimony differs from Comey’s is about what McCabe said to Comey after the fact. McCabe said that he told Comey and Comey thought it was a good idea.

McCabe said that he told Comey that he had “authorized AD/OPA and Special Counsel to disclose the account of the August 12th call” and did not say anything to suggest in any way that it was unauthorized. McCabe told us that Comey “did not react negatively, just kind of accepted it.” McCabe also told us Comey thought it was a “good” idea that they presented this information to rebut the inaccurate and one-sided narrative that the FBI was not doing its job and was subject to DOJ political pressure, but the Department and PADAG were likely to be angry that “this information made its way into the paper.” McCabe told us that he did not recall telling Comey prior to publication of the October 30 article that he intended to authorize or had authorized Special Counsel and AD/OPA to recount his August 12 call with PADAG to the WSJ, although he said it was possible he did.

Comey said when he spoke to McCabe about the story afterwards, McCabe denied knowing the source.

Comey told us that, prior to the article’s publication, he did not have any discussions with McCabe regarding disclosure of the August 12 PADAG call. According to Comey, he discussed the issue with McCabe after the article was published, and at that time McCabe “definitely did not tell me that he authorized” the disclosure of the PADAG call. Comey said that McCabe gave him the exact opposite impression:

I don’t remember exactly how, but I remember some form or fashion and it could have been like “can you believe this crap? How does this stuff get out” kind of thing? But I took from whatever communication we had that he wasn’t involved in it. . . . I have a strong impression he conveyed to me “it wasn’t me boss.”

Importantly, Comey disavowed any conversation with McCabe about this particular story before the fact.

Comey told us that, prior to the article’s publication, he did not have any discussions with McCabe regarding disclosure of the August 12 PADAG call.

That’s consistent with what McCabe said.

that he did not recall discussing the disclosure with Comey in advance of authorizing it, although it was possible that he did;

What McCabe has said elsewhere is that Comey had generally permitted just the two of them to speak with the press. But that was not specific to this story at all.

In other words, Ted Cruz got it wrong. Comey’s testimony to the Senate — which on follow-up was specifically about the WSJ story — was utterly consistent with McCabe’s.

Cruz lied. Comey didn’t.

Now it’s possible that Lindsey the Insurance Lawyer is attempting a gimmick, by claiming that Comey authorized Dan Richman to share information about the Hillary investigation (we know this is about Hillary because she is Person-1 in the charge the grand jury rejected). That is, Lindsey the Insurance Lawyer may be trying to apply this Comey answer to Richman.

Except — even assuming he had spoken to Richman about Hillary (the right wing belief, until Richman’s testimony in the last few weeks, is that Comey authorized Richman to talk about the Trump investigation) — Comey could easily say his answer here was about the McCabe reference. [Update: ABC is reporting that it is Richman.]

But if this thing were ever to go to trial — if Lindsey the Insurance Lawyer is really the US Attorney, if the indictment really is what the grand jury approved, if this doesn’t get booted on a vindictive prosecution claim, if Pat Fitzgerald fails to argue that Lindsey the Insurance Lawyer is confused about which FBI Director is a criminal — Comey can almost certainly call Teddy Cancun as a witness, at least to testify about materiality.

It would soon become clear that Comey’s answer, even if it were a lie, could never be material, because Ted Cruz was going to believe what he already believed. Cruz was committed to his false beliefs, no matter what Comey said in response.

But under questioning by a skilled attorney — and Fitz has questioned far bigger blowhards than Ted Cruz, if you can believe it — such testimony would force Cruz to either double down on his lies, or to confess he was the one lying all those years ago.

Right now, there’s not a shred of evidence that Comey lied in his statement.

There is, however, abundant evidence that Kash lied under oath and that Cruz lied in the same way he lies all the time. And if this were ever to go to trial, Cruz would, for once, have the opportunity to face consequences for any lies he told.

Update: CBS got the transcript of the exchange between Lindsey the Insurance Lawyer and Lindsey the Magistrate Judge. It seems clear that the Insurance Lawyer juggled her papers.

[T]wo versions of the indictment were published on the case docket: one with the dropped third count, and one without. The transcript reveals why this occurred.

“So this has never happened before. I’ve been handed two documents that are in the Mr. Comey case that are inconsistent with one another,” Vaala said to Halligan. “There seems to be a discrepancy. They’re both signed by the (grand jury) foreperson.”

And she noted that one document did not clearly indicate what the grand jury had decided.

“The one that says it’s a failure to concur in an indictment, it doesn’t say with respect to one count,” Vaala said. “It looks like they failed to concur across all three counts, so I’m a little confused as to why I was handed two things with the same case number that are inconsistent.”

Halligan initially responded that she hadn’t seen that version of the indictment.

“So I only reviewed the one with the two counts that our office redrafted when we found out about the two — two counts that were true billed, and I signed that one. I did not see the other one. I don’t know where that came from,” Halligan told the judge.

Vaala responded, “You didn’t see it?” And Halligan again told her, “I did not see that one.”

Vaala seemed surprised: “So your office didn’t prepare the indictment that they —”

Halligan then replied, “No, no, no — I — no, I prepared three counts. I only signed the one — the two-count (indictment). I don’t know which one with three counts you have in your hands.”

“Okay. It has your signature on it,” Vaala told Halligan, who responded, “Okay. Well.”

Probably, nothing will come of it. Probably, the only price Lindsey the Insurance Lawyer will pay for this is 1) disclosure of the no bill record 2) exposure of the charge grand jurors refused and 3) humiliation in her first big show.

But it creates surface area and, as I suggested, the possibility that Comey will use it to pierce the secrecy of everything else that went on in the grand jury, including why it took until 6:47 to indict this.

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Mainstream Press Confesses They Missed the Other Politicized Prosecutions

September 26, 2025/61 Comments/in emptywheel /by emptywheel

In her reply memo arguing she is entitled to legislative immunity in conjunction with her oversight visit to Delaney Hall on May 9, which led to assault charges after ICE unlawfully arrested Ras Baraka, LaMonica McIver described the charges against her this way:

The indictment charges a sitting Member of Congress for conducting oversight of a controversial ICE facility and for continuing to undertake that oversight in the face of ICE obstruction that included deliberate delays, deception, an armed and masked response team of over a dozen agents, and the arrest of the Mayor of Newark in the middle of a crowd of civilians on a baseless trespassing charge.

This reply was, admittedly, submitted after the indictment of Jim Comey on Trump™ed up charges. Indeed, McIver even cited the Comey situation in her vindictive prosecution reply.

The government’s efforts to explain statements of the President and Justice Department officials fare no better. The President’s declaration that the “days of woke are over” in connection with this prosecution is evidence that the charges are based on party and ideology and are part of a broader partisan agenda of ending “wokeness.” The statement is consistent with the President’s actions just last weekend when—concerned that “delay” in prosecuting specific political rivals is “killing our reputation and credibility”—he pushed out a “Woke RINO” U.S. Attorney who was inhibiting retributive prosecutions.6 The President’s statements may be inconvenient for the prosecution, but they accurately reflect his intent that the Department of Justice implement his political will. And the officials at DOJ have heard that call.7

6 Donald J. Trump (@realDonaldTrump), Truth Social (Sept. 20, 2025, at 18:44 ET), https://truthsocial.com/@realDonaldTrump/posts/115239044548033727; see also Alan Fuer et al., Trump Demands That Bondi Move ‘Now’ to Prosecute Foes, N.Y. Times (Sept. 20, 2025), https://www.nytimes.com/2025/09/20/us/politics/trump-justice-department-us-attorneys.html. 7 Sadie Gurman & Lydia Wheeler, James Comey Indicted on False Statement Charges, Wall St. J. (Sept. 25, 2025), https://www.wsj.com/us-news/law/james-comey-indicted-on-false-statementcharges-2c896df2?st=gX4Tob&reflink=desktopwebshare_permalink.

But here we are, four months after first Ras Baraka and then McIver were charged — and four years after Michael Sussmann was charged on a single false statement charge on the last day before the statute of limitations expired — and the mainstream press has only just now discovered that Donald Trump has weaponized DOJ against his adversaries.

Really?

I’ve already used past politicized investigations to describe where things are headed (note, too, the report that a flunky with a DWI conviction ordered six US Attorney offices to investigate the Open Society Fund).

But I want to point to something else from McIver’s prosecution.

Four months after she was charged, DOJ still hasn’t provided her basic discovery.

Over a month ago, DOJ agreed to give McIver video of the tour she took of Delaney Hall after the alleged assault. But it has instead stalled on editing the video.

First, the government asserts that some of the Congresswoman’s requests are “moot because the Government has agreed to provide her with what she seeks.” Opp. 69. In particular, the government has agreed to produce the video recordings from inside Delaney Hall that related to the Congresswoman’s tour of that facility on May 9. ECF No. 19-15 (Cortes Decl. Ex. M). But it is now more than six weeks since the government made that promise, and the defense has not received that material.

The government offers no real excuse: it merely claims that “ICE is currently reviewing the footage . . . to excise hours of video during the relevant timeframe which does not capture the Congressional tour.” Opp. 70. Yet the government provides no explanation why that process has taken so long. In fact, the Congresswoman and her colleagues were inside the facility from approximately 2:48 p.m., after Mayor Baraka was arrested, until 3:47 p.m., when the Members left Delaney Hall; surely agents are capable of reviewing those recordings from that one-hour timespan and sorting out the portions capturing the visit.

Nor does the government explain the necessity to “excise” scenes that do not relate to the Congresswoman’s tour. Certainly, the government identifies no privilege or security issue that would warrant or require such a process. Indeed, because the Congresswoman is a Member of the House of Representatives, as well as a member of that chamber’s Homeland Security Committee, there is no conceivable reason to keep her from seeing all of that footage.1 The Court should order its production immediately.

The government agreed to name the ICE officers involved in the event, but it has not even submitted a protective order it demands before it’ll do so.

The government also promised in its August 11 letter to produce the identities and ranks of any officers and agents present “at the time of the arrest of Mayor Baraka,” as well as identify which of those individuals were equipped with a body worn camera (“BWC”). Cortes Decl. Ex. M. To be sure, the letter also conditioned the information’s release on the parties’ execution of a protective order. Six weeks later, however, there is still no draft. The government merely promises that “this should be accomplished by the end of September,” with no explanation for the delay. Opp. 72.2 The Court should order the government to provide Congresswoman McIver with a proposed protective order immediately. And the Court should also order the government to prepare the production in the meantime.

DOJ claims it has turned over all the bodycam footage, but there’s at least one guy from whom McIver got no footage (and possibly a second), nor a confession that he simply didn’t turn the bodycam on.

McIver has requested the communications the officers sent during and about the event. But thus far, it appears DOJ has not collected them to find out if there is anything exculpatory in them.

First, although the officers have been “directed” to preserve that material, it is unclear who actually gave that direction or how they communicated it. Nor is there any information about the scope of the preservation. For example, were the officers instructed to retain all of their communications, whether on personal or government-issued devices? Were they told that they had to preserve all transmissions on every medium and application, including those on which messages disappear such as Signal, Telegram, and WhatsApp? Were they informed that the scope was to include any electronic or written communications with anyone, regardless of the recipients’ or senders’ relationship to the government?

[snip]

Finally, and most concerning, it is quite clear from the government’s formulation that the government has not actually collected, much less reviewed, those communications themselves. Without having done so, the prosecution team has not fulfilled its Brady obligations and cannot credibly represent otherwise to the Court or defense. That is because they do not know what is contained in the communications.

As I’ve noted, Todd Blanche is personally implicated in the competing claims of assault here. He’s the one who ordered Ricky Patel to arrest Ras Baraka in the first place.

V-1 announced a decision to arrest Mayor Baraka: “I am arresting the mayor . . . even though he stepped out, I am going to put him in cuffs . . . per the Deputy Attorney General of the United States.”

These are the kinds of allegations that right wingers claim, without merit, went on in the January 6 case: missing video, missing communications, and personal involvement of a political appointee. And the delay in production suggests there might be something bigger going on.

And yet you won’t hear that from the vast majority of the mainstream press.

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Trump Can’t Even Weaponize DOJ Competently

September 20, 2025/99 Comments/in emptywheel /by emptywheel

It is, no doubt, terrible that EDVA US Attorney Erik Siebert was forced out yesterday because he refused to charge Tish James with fraud when there’s little evidence she engaged in mortgage fraud.

But there are aspects of the firing that make it epically incompetent and, like the quid pro quo with Eric Adams and the effort to send hundreds of men to a concentration camp beforehand, may backfire going forward.

ABC, which was the first to report on the firing, confirms that Seibert received notice that Trump wanted to fire him on Thursday, which presumably is how both ABC and NBC reported he was expected to be fired in advance of that happening.

Siebert was notified of the president’s intention to fire him Thursday, sources said, and Trump said Friday afternoon in the Oval Office that he wanted Siebert “out” of his position.

That meant that the reason for the firing — the refuse to indict James — was public before it happened.

And even though Trump has reversed engineered a different reason for the firing — it’s not that he’s firing Siebert because Siebert won’t prosecute Tish James, it’s that he was backed by both Virginia’s Democratic Senators, which was true and apparent when Trump nominated Siebert — in the same breath he insisted that Seibert had not quit, but instead Trump had fired him.

Today I withdrew the Nomination of Erik Siebert as U.S. Attorney for the Eastern District of Virginia, when I was informed that he received the UNUSUALLY STRONG support of the two absolutely terrible, sleazebag Democrat Senators, from the Great State of Virginia. He didn’t quit, I fired him! Next time let him go in as a Democrat, not a Republican.

Particularly given ABC’s report that Siebert would like to stay on at EDVA as an AUSA, this text, demanding credit for firing Siebert, changes Siebert’s legal options going forward, and the impact of the firing on cases Siebert wouldn’t charge.

Both NYT and WaPo report that Todd Blanche (and Pam Bondi, NYT adds) tried to save Siebert’s job.

Attorney General Pam Bondi and Todd Blanche, the deputy attorney general who runs the day-to-day operations of the Justice Department, had privately defended Mr. Siebert against officials, including William J. Pulte, the director of the Federal Housing Finance Agency, who had urged that he be fired and replaced with a prosecutor who would push the cases forward, according to a senior law enforcement official.

Mr. Pulte’s power far outstrips his role as the head of an obscure housing agency. He has gained Mr. Trump’s favor by pushing mortgage fraud allegations against perceived adversaries of the White House, including Ms. James; a Federal Reserve governor, Lisa Cook; and Senator Adam B. Schiff, Democrat of California.

Mr. Pulte has made use of his influence and access to a president who prefers advisers who are willing to push boundaries. He had told Mr. Trump directly that he believed Mr. Siebert could be doing more, according to several officials with knowledge of the matter.

But Mr. Blanche, like Mr. Siebert, questioned the legal viability of bringing charges against Ms. James, according to current and former department officials who spoke on the condition of anonymity because they were not authorized to talk about internal discussions.

WaPo added the unsurprising bit that Ed Martin, who works for Bondi and Blanche, also weighed in to get Siebert fired.

They added that Ed Martin, the Justice Department official who is overseeing criminal investigations based on Pulte’s allegations, also pushed for Siebert to be removed.

Todd Blanche is Trump’s fixer, neck deep in an effort to make Trump’s sex-trafficking problems go away. He has not shied, at all, from enacting Trump’s campaign of revenge. And yet somehow it got reported that Blanche, “questioned the legal viability of bringing charges against Ms. James.”

The firing creates all sorts of headaches for Blanche. All of DOJ knows that Eagle Ed, along with Bill Pulte (who is not a lawyer and whose primary career skill has been benefitting from nepotism) got Siebert removed over Blanche’s objections. But it’s also public that even Blanche agrees there’s no case against James. Who is in charge of DOJ if Eagle Ed, never a prosecutor and prone to embarrassing gaffes when he tries to play lawyer more generally, can override Blanche’s personnel and prosecutorial decisions?

And it’s not just the James prosecution that will be difficult to charge in EDVA, though I can imagine judges there will be very skeptical of this investigation going forward. NYT also reports that Dan Richman, whose testimony prosecutors obtained in an effort to charge Jim Comey for statements he made four years and 355 days ago (meaning the statute of limitation expires in coming weeks), didn’t tell them what they wanted him to.

Mr. Richman’s statements to prosecutors were not helpful in their efforts to build a case against Mr. Comey, according to two people familiar with the matter.

It’s not clear that firing Siebert will achieve the ostensible objective — to install someone who will charge James and Comey, in spite of the evidence. If that were to happen, it might well blow up in epic fashion.

And whatever happens, this badly undermines Blanche’s hold on DOJ (even as various MAGAts have it in for Bondi and/or Kash).

Plus, some Republicans in Congress were already uncomfortable (anonymously) with Pulte’s tantrums.

“I think he’s a nut,” one House Republican said of Pulte. (Like others in this story, the lawmaker was granted anonymity to speak candidly about sensitive dynamics within the Trump administration.)

“The guy’s just a little too big for his britches,” said a second GOP lawmaker, who sits on the House Financial Services Committee, which oversees housing policy and the FHFA. “I’ve got great respect for Bessent for taking him on.”

Partly that’s concern for the Fed, but it cannot have escaped their notice how easy it is to claim people engaged in mortgage fraud, not to mention the way such concerns could influence Ken Paxton’s challenge to John Cornyn in the Texas Senate primary.

None of that mitigates the dangers of this kind of weaponization. They just make it more likely that efforts to weaponize DOJ will create larger and larger problems for Blanche and possibly even for Trump.

Update: Reuters reports that a woman once investigated, but not charged, for involvement in January 6 has been appointed Acting US Attorney.

A former federal prosecutor who once claimed former President Joe Biden’s administration targeted her for being conservative told colleagues in an email on Saturday that she has been named to replace a top prosecutor who resigned on Friday after President Donald Trump had said he wanted him out.
In an internal email seen by Reuters, Mary “Maggie” Cleary told attorneys she has been “unexpectedly” tapped to be acting U.S. attorney for the Eastern District of Virginia. She did not immediately respond to an email from Reuters seeking comment.

Update: Trump has sent (two times, I think) a post berating Pam Bondi for not prosecuting his enemies, and then announced he’ll nominate Lindsey Halligan, the insurance lawyer who served as local counsel in ihs Florida case.

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Posts

Tick Tock, Tick Tock: Lindsey Halligan’s Filter Follies

“Sensitivities and Exposure:” Six Stupid Things about Lindsey Halligan’s First Filing

Prosecutors Sucking Lemons in Their Vindictive Prosecution of Jim Comey

The Nativists Are Getting Restless: How the Rhythm of the Comey Prosecution May Backfire

EDVA’s rocket docket

Selling a Lemons CIPA dodge

Donald Trump’s clearance tantrums

Jack Eckenrode, WDVA, and John Durham’s discovery woes

Lindsey Halligan won’t say who she represents

How Kash Patel and Pam Bondi became Slaves to Stephen Miller

Will Jim Comey’s Prosecution Prove Kash Patel Lied to Senate Judiciary Committee?

The reopened Arctic Haze investigation was biased against Comey

Kash did look backward

Fridays with Nicole Sandler

Will Ted Cruz Go to Prison for the Lies He Told as Part of the Jim Comey Indictment?

Lindsey Halligan’s disclaimer of signing the Comey indictment

The vindictive prosecution challenge

The Russian disinformation that Chuck Grassley falsely claimed was a Clinton plan

Jim Comey will get to expose Ted Cruz as a liar, again

Mainstream Press Confesses They Missed the Other Politicized Prosecutions

Trump Can’t Even Weaponize DOJ Competently

Interesting links

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