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Judge Nachmanoff Punts on Privilege

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I think the dispute between Lindsey Halligan’s loaner AUSAs and Jim Comey is a fight that has ramifications for Trump’s larger attempt to use DOJ to punish his enemies.

According to court filings, investigators from the case got access to Comey’s attorney-client information, possibly on September 25, the day Halligan obtained the indictment. Before they had given Comey a shred of discovery, they sent him a draft filter protocol on October 10. Then on October 13 — still before they had handed over discovery, which appears to have revealed they got no new warrant to access this old material — the loaner AUSAs asked Judge Nachmanoff to approve a filter protocol that would give the government the first chance to make privilege determinations. Abiding by local rules, Comey didn’t respond right away, leading prosecutors (on October 20) to ask the judge to hasten his consideration of the matter, even while accusing Patrick Fitzgerald of being part of a “leak” behind sharing unclassified information under Dan Richman’s name. Which is one of the things Comey patiently explained that same day: the loaner AUSAs were defaming Fitzgerald. After Nachmanoff denied the prosecutors’ bid to rush the issue, Comey laid out all the problems with this bid to get access to his privileged communications on Monday (which I wrote about here).

Among other things, he noted that prosecutors don’t appear to have gotten a warrant to review this material for this alleged crime — they’re still relying on warrants obtained in 2020 to investigate a leak of classified information.

Comey requested that, before he had to suppress this material, Judge Nachmanoff first require prosecutors to answer a bunch of questions, such as who already accessed the material and under what authority.

Nachmanoff didn’t do that.

Instead, he ordered Magistrate Judge William Fitzpatrick to deal with it; Fitzpatrick, in turn, set a hearing for next Friday.

At one level, that looks like a punt.

But in effect, it makes it exceedingly unlikely that prosecutors will get their filter protocol.

Nachmanoff cited a relevant precedent for this, in which lawyers (including Roger Stone prosecutor, Aaron Zelinsky and Joe Biden Special Counsel Robert Hur, because this year of my life necessarily requires revisiting every fucking case I’ve ever covered before) tried to do the filter review for a law firm, only to have the Fourth Circuit remand it for a magistrate judge do it.

This Court assesses the appropriate contours of a privilege filter protocol according to the guidelines set forth in In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), as amended (Oct. 31, 2019). In In re Search Warrant, a Baltimore law firm challenged the government’s use of a Department of Justice filter team to inspect attorney-client privileged materials seized from that firm. Id. at 164. The Fourth Circuit reversed the district court’s denial of the law firm’s motion to enjoin the filter team’s review of the seized material. Relevant to this case, the Fourth Circuit held that “a court is not entitled to delegate its judicial power and related functions to the executive branch, especially when the executive branch is an interested party in the pending dispute.” Id. at 176. The Fourth Circuit observed that, “[i]n addition to the separation of powers issues” that might arise, allowing members of the executive to conduct the filter, even if those members were trained lawyers, raised the possibility that “errors in privilege determinations” would result in “transmitting seized material to an investigation or prosecution team.” Id. at 177. It thus determined that the filter protocol “improperly delegated judicial functions to the Filter Team,” and that instead, “the magistrate judge (or an appointed special master) — rather than the Filter Team — must perform the privilege review of the seized materials[.]” Id. at 178, 181 (collecting cases).

Prosecutors had argued (in what might be their only reference to this, a directly relevant precedent) that informing Comey at the start mitigated the risk at the heart of the earlier case.

Further, the Proposed Protocol creates a process by which the putative privilege holders remain engaged and may assert a privilege over PPM, with any remaining disputes to be resolved by the Court. Indeed, the Proposed Protocol requires authorization from the potential privilege holder(s) or the Court before the Filter Team may disclose PPM to the Prosecution Team. Thus, this Protocol does not authorize the Government to adjudge whether specific material is privileged. Instead, the Protocol leaves adjudication of any unresolved privilege claims to the Court. See Fed. R. Evid. 501. Accordingly, unlike the concerns raised by In re Search Warrant, the Government has engaged the putative privilege holders from the onset and will continue to engage them and the Court, if necessary, as prescribed by the Protocol before disclosing any PPM. Cf. In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 176-178 (4th Cir. 2019), as amended (Oct. 31, 2019) (discussing concerns of delegating judicial functions to the executive branch where the magistrate judge authorized an ex parte filter review of a search warrant return of a law firm).

Without even mentioning this (specious) claim from the loaner AUSAs, Nachmanoff treated the entire privilege review as one the In re Search Warrant opinion defines as a judicial function. That, plus the Fourth’s citation to the 2018 treatment of Michael Cohen’s communications (when I said every fucking case I’ve ever covered, I meant all of them) signals Nachmanoff will surely insist Fitzpatrick or someone Fitzpatrick appoints conduct any review.

But Nachmanoff went further in his seeming punt. He also suggested that, even before Fitzpatrick conduct a review, he should first answer a number of questions — questions that largely track those Comey raised, including the questions (cited at page 12 here) he raised.

The Fourth Circuit further concluded that adversarial proceedings before the magistrate judge were needed prior to the authorization of a filter team and protocol. Id. at 179.

Similarly here, briefing on the government’s proposed filter protocol raises several legal questions that must be resolved before any protocol is authorized. These questions include, but are not limited to, whether the original warrants authorizing the seizure of the materials at issue are stale, whether those warrants authorize the seizure and review of these materials for the crimes at issue in this case, whether the lead case agents or prosecution team in this case have been exposed to privileged materials, and what the proper procedures are, if any, for review of the materials at issue. See ECF 71 at 1, 5, 6, 8–10, 12.

Which is to say, this is a punt, but a punt saying, “binding Fourth Circuit precedent says Comey is right.”

Update: Comey has submitted three additional pretrial motions. He asked to:

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Donald Trump’s [Miles] Starr Chamber

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When the government first asked, on October 13, to use a filter review to access content seized from Dan Richman five years ago, it described that Jim Comey, “prefers to challenge the underlying search warrant first before any review takes place.”

But in his response yesterday, Comey didn’t do that.

Rather, after a heavily-redacted discussion of the problems with DOJ’s past and prospective access to the content, he proposed that Judge Michael Nachmanoff should deny the government’s filter request without prejudice, allowing DOJ to reconsider its bid for a filter protocol after they’ve first answered a set of questions.

For the foregoing reasons, the Court should deny the government’s motion to implement its proposed filter protocol without prejudice, and direct the government to disclose the following information to allow both the Court and the defense to assess the appropriateness of the protocol:

1. The legal authority for the contemplated review.

2. Whether any quarantined materials have been accessed by, shared with, or provided to the case team (and, if so, which materials were reviewed by which personnel on which day), and whether any such materials have been produced in discovery.

3. The protocol used during the prior filter review, including search parameters, segregation measures, privilege determinations, and associated logs or correspondence.

4. Whether the government intends to search raw returns or only the set already filtered in the prior review. See In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 181 (4th Cir. 2019), as amended (Oct. 31, 2019) (holding that “the magistrate judge erred” by approving a filter protocol “without first ascertaining” the materials to be reviewed).

5. Whether non-lawyers will conduct any portion of the Filter Review. See ECF No. 38-1 ¶ 2 n.2 (“The Filter Team is comprised of Two Assistant United States Attorneys, and their support staff”) (emphasis added); see In re Search Warrant Issued June 13, 2019, 942 F.3d at 177 (criticizing the use of non-lawyers to designate documents as nonprivileged).

One might explain the reason why he’s doing this in one or two ways.

The first is a procedural reason. The warrants and original filter protocol themselves were probably reasonably sound for the purpose to which they were put: investigating whether Richman leaked classified information. The heavily redacted bit describes four different warrants and the loaner AUSAs’ original filing described content seized from “an image of a computer hard drive, an iCloud download, the backup of an iPhone, and the backup of an iPad.” There are five sealed exhibits to the filing (none cited in unredacted form), of which four are presumably the warrants and one may pertain to the original protocol, though there is something identified in footnote 4 that “was not produced,” not even after Comey’s team asked about it on October 23. While the seized material included a great deal of material, including material pertaining to Richman’s clients other than Comey and “sensitive and private materials belonging to his students,” the original filter protocol withheld, “private materials related to his students, as well as privileged materials, [from] the case team.”

But, contrary to the approach used with (for example) Michael Cohen as well as what we’ve been able to publicly review of warrants implicating Rudy Giuliani, in which prosecutors obtained new warrants every time the scope or target of an investigation changed, the government appears not to have obtained new warrants to search this material for a different crime, the alleged lie Comey told in 2020.

[I]t appears that the government has not obtained any search warrants in connection with the instant matter, including any warrant authorizing a search of the Arctic Haze materials for evidence of the two offenses with which Mr. Comey is charged.

Comey cites several precedents, one in the Fourth Circuit, that would require a new warrant.

He points to other reasons, too, why the government would need to obtain new warrants: because these warrants are not only stale, but they predate the alleged crime here, testimony from October 2020.

The government now proposes to use those warrants to search for evidence of different crimes that arose from a proceeding that occurred after USAO-DDC obtained the Arctic Haze warrants.

Comey also objects because some part of this was sealed by another court, which by date and location would probably have been an order from Beryl Howell when she was Chief Judge in DC.

The government has no lawful basis to review materials obtained more than five years ago, in a closed investigation that ended without any charges, pursuant to stale warrants for separate offenses, including materials that remain under seal by another court. [my emphasis]

Comey maintains that he can challenge the use of these warrants here.

The Fourth Amendment plainly prohibits the government from doing exactly what it seeks to do here: the Arctic Haze warrants were obtained more than five years ago in a separate and now-closed criminal investigation and authorized the seizure of evidence of separate offenses. Yet the government seeks to turn those warrants into general warrants to continue to rummage through materials belonging to Mr. Comey’s lawyer in an effort to seize evidence of separate alleged crimes. The Court should not authorize the government to conduct an unlawful review.

[snip]

Mr. Comey reserves his right to move to suppress these warrants, to the extent the government continues to use them in this manner. See, e.g., United States v. Place, 462 U.S. 696, 709–10 (1983) (a seizure lawful at its inception can nevertheless violate the Fourth Amendment based on agents’ subsequent conduct); DeMassa v. Nunez, 770 F.2d 1505, 1508 (9th Cir. 1985) (“an attorney’s clients have a legitimate expectation of privacy in their client files”). Until the government answers the questions the defense has previously raised about these warrants, which to date have remained unanswered and which are detailed at the end of this submission, the defense will not be in a position to file an appropriately targeted suppression motion.

But even the language here notes at one problem: Normally you challenge a Fourth Amendment violation by suppressing evidence for use at trial. Here, Comey is trying to do more. He’s trying to prevent investigators from even accessing it. And so, instead, he’s asking the judge to force prosecutors to answer some basic questions in the guise of allowing him to suppress the warrants.

Until the government answers the questions the defense has previously raised about these warrants, which to date have remained unanswered and which are detailed at the end of this submission, the defense will not be in a position to file an appropriately targeted suppression motion.

Which brings us to the second possible reason for responding this way: question 2. Who already accessed privileged material, when did they do so, and has the government turned over that material in discovery? The answer to that question, especially, would force investigators to confess if they’ve already snuck a peek into what is in the privileged communication.

The “spill” that Comey suspects happened may have happened recently: on the day Lindsey Halligan obtained the indictment.

That footnote, marked in pink, cites the Criminal Case Cover Sheet, which, in spite of being labeled as “REDACTED,” is not, and so among other things, reveals the name of one of two FBI agents on the case, Miles Starr (the other being Jack Eckenrode, who investigated Scooter Libby but then left the team, and who joined John Durham in chasing Russian disinformation for four years).

I’ve redacted Starr’s phone number. You’re welcome, Miles.

But the Sheet also includes an error: it lists three counts, including the one, pertaining to Comey’s answer to Lindsey Graham’s question about a CIA referral (one that FBI may never have received) that Kash Patel and John Ratcliffe ret-conned into a “Clinton Plan” on which to hang the Durham investigation. That’s the one the grand jury no-billed.

While none of that explains when and how Starr and Eckenrode snuck a peek of privileged information, it might explain why.

Kash and Eckenrode are still chasing the theory behind the dropped charge, that Jim Comey purportedly knew Hillary Clinton had a plan (one fabricated by Russia and then embellished by Eckenrode and Durham to claim Hillary wanted to frame Trump) to emphasize Donald Trump’s ties with Russia. That’s the logic of the larger conspiracy theory that Eckenrode has been hired to chase. It was and remains Russian disinformation, but that didn’t stop Eckenrode the last time he tried this.

Indeed, because DC USAO obtained warrants in 2019 and 2020, there may be communications between Comey and his attorneys about the John Durham investigation, about Eckenrode’s past witch hunt, which would explain why Comey is so interested in the scope of proposed review, which the loaner AUSAs still haven’t told Comey.

Because Kash and Eckenrode are chasing that conspiracy theory, this is a much bigger issue than just the case before Nachmanoff. As I laid out in my post predicting that John Durham’s investigation was a preview of coming attractions (even before I knew that Kash had brought Eckenrode back!), Durham already played games to access attorney-client privileged material.

In response, Sussmann accused Durham of abusing the same grand jury process he abused with Benardo (abuse, ironically, that debunked Durham’s conspiracy theory).

First, the Special Counsel’s Motion is untimely. Despite knowing for months, and in some cases for at least a year, that the non-parties were withholding material as privileged, he chose to file this Motion barely a month before trial—long after the grand jury returned an Indictment and after Court-ordered discovery deadlines had come and gone.

Second, the Special Counsel’s Motion should have been brought before the Chief Judge of the District Court during the pendency of the grand jury investigation, as the rules of this District and precedent make clear.

Third, the Special Counsel has seemingly abused the grand jury in order to obtain the documents redacted for privilege that he now challenges. He has admitted to using grand jury subpoenas to obtain these documents for use at Mr. Sussmann’s trial, even though Mr. Sussmann had been indicted at the time he issued the grand jury subpoenas and even though the law flatly forbids prosecutors from using grand jury subpoenas to obtain trial discovery. The proper remedy for such abuse of the grand jury is suppression of the documents.

Fourth, the Special Counsel seeks documents that are irrelevant on their face. Such documents do not bear on the narrow charge in this case, and vitiating privilege for the purpose of admitting these irrelevant documents would materially impair Mr. Sussmann’s ability to prepare for his trial.

He also revealed that some of those privilege claims went back to August — that is, the weeks after Durham should have closed up shop.

Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 9, 2021) (requesting a call to discuss privilege issues with a hope “to avoid filing motions with the Court”); Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 14, 2021) (stating that the Special Counsel “wanted to give all parties involved the opportunity to weigh in before we . . . pursue particular legal process, or seek relief from the Court”). And since January— before the deadline to produce unclassified discovery had passed—the Special Counsel suggested that such a filing was imminent, telling the DNC, for example, that he was “contemplating a public court filing in the near term.” Email from Andrew DeFilippis, Dep’t of Just., to Shawn Crowley, Kaplan Hecker & Fink LLP (Jan. 17, 2022). [my emphasis]

In a hearing on May 4, right before trial, Joffe’s lawyer revealed they had demanded Durham press a legal claim much earlier, in May 2021.

MR. TYRRELL: So if they wanted to challenge our assertion of privilege as to this limited universe of documents — again, which is separate from the other larger piece with regard to HFA — they should have done so months ago. I don’t know why they waited until now, Your Honor, but I want to be clear. I want to say without hesitation that it’s not because there was ever any discussion with us about resolving this issue without court intervention.

THE COURT: That was my question. Were you adamant a year ago?

MR. TYRRELL: Pardon me?

THE COURT: Were you adamant a year ago that —

MR. TYRRELL: Yes. We’ve been throughout. We were not willing to entertain resolution of this without court intervention.

THE COURT: Very well.

Ultimately, Cooper did bow to Durham’s demand, but prohibited them from using those documents at trial.

That didn’t prevent DeFilippis from attempting to use the privileged documents to perjury trap his one Fusion witness, the kind of perjury trap that might have provided a way to continue the madness indefinitely.

There must have been nothing interesting there: most of the Fusion documents were utterly irrelevant to the Sussmann charges, but could implicate the Danchenko ones, but Durham didn’t use them there, nor did he explain their content in his final report.

That effort involved, among other things, abusing the prosecutorial process to bypass rulings (such as the sealing order mentioned above) that Beryl Howell had already made, and using one criminal case, against Michael Sussmann, to obtain attorney-client privileged materials that would only be relevant in another criminal case, the Igor Danchenko case (or a larger conspiracy).

Particularly given the reticence of the loaner AUSAs to tell Comey what happened, whether they have warrants, who read what, this feels like an attempt to retroactively bless access that investigators already got. And the stakes are bigger than this one case. As Durham (and Eckenrode) did in 2022, this likely would primarily serve to feed their bigger conspiracy theory.

Plus, if Eckenrode is sneaking peeks at Comey’s privileged communications still in FBI custody, there’s nothing that would prevent him from doing the same with all the other people whose privileged communications have been seized during this years-long witch hunt.

And that’s why you ask these questions.

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Taint

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Earlier today, Jim Comey filed his opposition to the loaner AUSAs’ bid to do a quickie filter team to access materials that — the context makes clear — were seized in the investigation of Dan Richman back in 2019.

Key parts of that opposition were redacted under Sensitive labels applied to discovery, such as this passage describing concerns about the “continue[d]” review of material seized from Richman.

But in his order denying the loaner AUSA bid to accelerate this filter team, Judge Michael Nachmanoff described the main gist of the concern: The two main FBI investigators already peeked at the discussions among lawyers representing Comey back in 2019, including Dan Richman and Patrick Fitzgerald.

He also states that the underlying warrants were “obtained by prosecutors in a different district more than five years ago[,] in an investigation that closed without criminal charges[,] and [] authorized the seizure of evidence related to separate offenses that are not charged here.” Id. at 2. And, there is “reason to believe that the two principal FBI investigators may already have been tainted by exposure” to privileged information. Id. at 3.

Remember, the lead investigator is reportedly Jack Eckenrode, who knows Fitzgerald from way back, from the Libby case. He’s the same investigator who participated in John Durham’s ploy to breach privilege during the Michael Sussmann case in hopes of using that privileged information elsewhere.

The unethical dickishness makes much more sense now.

When the government first raised the privilege protocol with the defense, on October 10 and 11, the defense asked for an opportunity to review the underlying warrants at issue to determine whether Mr. Comey would agree to the protocol. The government refused to provide the warrants before filing its motion for a filter protocol, and did not produce the warrants until late in the evening of October 13, 2025.

They appear to be pushing for this filter review — a filter review entirely excluding Comey, a filter review unlike any of the ones Trump’s attorneys were subjected to — to bulldoze through the possibility they already snuck a peek, and took investigative steps based on that.

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60 Pages of Animus: Jim Comey’s Motions to Dismiss His Prosecution

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Along with his motions to dismiss because Lindsey Halligan was unlawfully appointed and for vindictive and selective prosecution, Jim Comey included a 60-page filing of all the mean things Donald Trump has said about him, dating from May 2, 2017 to September 27, 2025.

With very few examples, there’s very little that wasn’t already public:

  • Lindsey the Insurance Lawyer’s appointment, showing that she was appointed under 28 USC 546, which Ed Whelan has argued is unlawful.
  • A footnote describing that, “On October 15, 2025, the government confirmed to the defense that Person 1 refers to Hillary Clinton and Person 3 refers to Daniel Richman.”

There’s nothing (besides the appointment) hinting at what Comey received in discovery.

Curse you, Pat Fitzgerald!!!

That has the advantage of allowing Comey to submit everything in unredacted fashion (his response to the loaner prosecutors’ bid to breach his privilege did have key redactions). It likely also had the advantage of being mostly written by the time of the arraignment.

There are some interesting legal details, however, which also telegraph what Comey will file if these two, closely linked motions fail. One paragraph describes the way Lindsey the Insurance Lawyer misrepresented what he said to Ted Cruz five years ago, which the filing notes will become a motion to dismiss because what he said was literally true (the basis on which Judge Anthony Trenga dismissed one of five counts against Igor Danchenko).

The indictment misstates the exchange between Senator Cruz and Mr. Comey. Senator Cruz asked Mr. Comey to affirm or deny prior testimony that he authorized “someone else at the FBI to be an anonymous source in news reports about . . . the Clinton Administration.” But Hillary Clinton was not elected, and Senator Grassley’s original questioning in 2017 related to the “Clinton investigation.” See FBI Oversight Transcript at 5, Exhibit B. The indictment nonetheless mischaracterizes Mr. Comey as stating that he “had not ‘authorized someone else at the FBI to be an anonymous source in news reports’ regarding an FBI investigation concerning PERSON 1,” ECF No. 1 at 1 (emphasis added). Thus, the indictment replaces Senator Cruz’s reference to the “Clinton Administration” with a reference to “PERSON 1” (Hillary Clinton) and misleadingly attributes statements to Mr. Comey that he did not in fact make during his September 30, 2020, testimony. 8

Further, the indictment omits Senator Cruz’s words that explicitly narrow the focus of his questions to Mr. McCabe and misleadingly implies that the questioning related to Mr. Richman. In fact, Mr. Comey’s September 2020 exchange with Senator Cruz made no reference whatsoever to Mr. Richman, who ultimately appears in the indictment as PERSON 3. Instead, the context of the exchange confirms that Senator Cruz was asking about leaks by Mr. McCabe—indeed, Senator Cruz asked Mr. Comey whether he or Mr. McCabe was “telling the truth.” In other words, the indictment presents an inaccurate description of the testimony at the heart of this case.

8 Mr. Comey expects to move to dismiss Count One based on a defense of literal truth. See Bronston v. United States, 409 U.S. 352 (1973).

Another describes that, because Lindsey the Insurance Lawyer was unlawfully appointed, she had no business being in the grand jury.

To start, the government has flagrantly violated due process, equal protection, and the First Amendment by prosecuting Mr. Comey based on his protected speech and based on personal animus. Those acts alone satisfy the first factor. And there is more: The government effectuated the prosecution through a separate and independent willful violation—an unlawful appointment of a White House aide as interim U.S. Attorney.11 The government’s conduct is antithetical to fundamental constitutional principles and serves no legitimate governmental end.

11 The government also violated the Federal Rules of Criminal Procedure, which allow only “attorneys for the government” to be “present while the grand jury is in session,” Fed. R. Crim. P. 6(d)(1), and define such attorneys to include only “attorney[s] authorized by law to conduct” grand jury proceedings, Fed. R. Crim. P. 1(b)(1)(D) (emphasis added). Those rules implement the longstanding principle that grand jury proceedings must remain secret and thus reinforce that the unlawful appointment of Ms. Halligan tainted the structure of the grand jury proceeding. See United States v. Sells Eng’g, Inc., 463 U.S. 418, 424 (1983).

This is how the two motions work in tandem. The aberrant procedures used to install Lindsey the Insurance Lawyer is itself proof of vindictiveness.

The other interesting arguments address why this should be dismissed with prejudice — most notably (given the loaner prosecutors’ games with privileged communications) because if Judge Nachmanoff does not, they’ll try again in the next six months.

Finally, dismissal with prejudice is warranted because any other remedy would put Mr. Comey “at a greater disadvantage than [he] would have faced had the government” not violated the Constitution. Id. at 1043. In fact, dismissing the indictment without prejudice would reward the government for its last-minute installation of Ms. Halligan as interim U.S. Attorney and consequent manipulation of the statute of limitations. As noted, the statute of limitations on Mr. Comey’s purported offenses was set to expire just ten days after Ms. Halligan’s unlawful appointment. Had the Attorney General not appointed Ms. Halligan at the eleventh hour, there is no reason to believe that the indictment would have been filed within the limitations period. That timing is significant not only because it allowed the government to bring this prosecution, but also because the government will likely argue that the filing of the indictment tolls the limitations period under 18 U.S.C. § 3288. And if this Court were to dismiss without prejudice, the government will likely argue that it has six months from the date of dismissal to file a new indictment. See id.12 The government would thus be in a better position than it would have been but for its constitutional violations. And Mr. Comey is in a worse position because he faces criminal prosecution, rather than experiencing the repose of an expired limitations period.

12 Mr. Comey disputes that reading of Section 3288. But for present purposes, the important point is that the government can at least argue that Section 3288 allows it to file a new indictment if this case is dismissed without prejudice—thus prolonging this deeply flawed case.

There’s very little fucking around here.

There’s no hint whether and if so how much of the earlier documents (like the declination decisions by Bill Barr and John Durham or even the 302s from those prosecutors) prosecutors even gave Comey in discovery.

We don’t even get to hear about Kash Patel’s well-documented malice!

We might have to wait to see that for Maurene Comey’s lawsuit.

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Lindsey Halligan Lectures Someone ELSE about Conflicts

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A filing in the Jim Comey case bearing the name of Lindsey Halligan claims that it is very important to disclose conflicts as early as possible.

1 “[Bo]th the Sixth Amendment and the Virginia Rules of Professional Conduct invite, indeed compel, prosecutors to alert a trial court to a defense attorney’s potential or actual conflict.” United States v. Cortez, 205 F. Supp. 3d 768, 775 (E.D. Va. 2016) (emphasis added) (Ellis, J.); see also United States v. Howard, 115 F.3d 1151, 1155 (4th Cir. 1997) (Wilkinson, C.J.) (noting that a district court “has an obligation to foresee problems over representation that might arise at trial and head them off beforehand”).

Only, the filing is not disclosing conflicts that Halligan, the Trump personal defense attorney turned unlawfully appointed US Attorney who didn’t identify her client at the arraignment, might have.

Rather, in a bid to accelerate consideration of the loaner prosecutors’ filter request (which I wrote about here), it insinuates that Pat Fitzgerald has a possible conflict on this case. As it describes, some of the communications that (it all but confirms) Dan Richman designated as privileged back in 2019 include Fitzgerald.

Relevant to this motion, the attorney has informed the government that the quarantined evidence contains communications between the defendant and several attorneys. The current lead defense counsel appears to be a party to some of these communications.

To turn that into a potential conflict, the loaner prosecutors (and probably also James Hayes, who again shows as the author of the document, but who has not filed a notice of appearance in the case) wildly misrepresent the DOJ IG Report on Jim Comey’s retention of the memos he wrote memorializing his conversations with Trump.

[T]he defendant used current lead defense counsel to improperly disclose classified information.2

2 See U.S. Department of Justice (DOJ) Office of the Inspector General (OIG), Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02, (August 2019), (located at https://web.archive.org/web/20250818022240/https://oig.justice.gov/reports/2019/o1902.pdf, last accessed October 19, 2025).

(They provide a Wayback Machine link, because Trump killed the DOJ IG site in his bid to kill the main Inspector General organization.)

While the IG Report describes that Comey sent Fitzgerald four of the memos — which Comey believed to be unclassified — he sent the memo that Richman shared for this NYT story separately, meaning the report does not substantiate the claim that Fitzgerald was in the loop on that story.

May 14, 2017

Comey sends scanned copies of Memos 2, 4, 6, and 7 from his personal email account to the personal email account of one of his attorneys, Patrick Fitzgerald. Before sending, Comey redacts the second paragraph from Memo 7 involving foreign affairs because Comey deems it irrelevant. On May 17 Fitzgerald forwards these four Memos to Comey’s other attorneys, David Kelley and Richman.

May 16, 2017

Comey sends a digital photograph of Memo 4 (describing the meeting in which Comey wrote that President Trump made the statement about “letting Flynn go”) to Richman via text message from Comey’s personal phone. Comey asks Richman to share the contents, but not the Memo itself, with a specific reporter for The New York Times. Comey’s stated purpose is to cause the appointment of a Special Counsel to ensure that any tape recordings that may exist of his conversations with President Trump are not destroyed. Richman conveys the substance of Memo 4 to the reporter. The New York Times publishes an article entitled “Comey Memo Says Trump Asked Him to End Flynn Investigation.”

[snip]

As described in this section, on May 14, 2017, Comey transmitted copies of Memos 2, 4, and 6, and a partially redacted copy of Memo 7 to Fitzgerald, who was one of Comey’s personal attorneys. Comey told the OIG he thought of these Memos as his “recollection recorded,” like a diary or personal notes. Comey also said he believed “there’s nothing classified in here,” and so he thought he could share them with his personal attorneys.

And even using the FBI classification review of the memos he shared rather than Comey’s own review (he was an Original Classification Authority), he shared just six words, classified “Confidential” with his attorneys, and Richman didn’t share that information with Mike Schmidt.

FBI conducts a classification review of Comey’s Memos. The FBI determines that Comey correctly classified Memo 1 (which Comey did not share with anyone outside the FBI); that Memos 4, 5, and 6 are unclassified but “FOUO”; and that portions of Memos 2, 3, and 7 are classified, as follows:

Memo 2: Six words from a statement by President Trump comparing the relative importance of returning telephone calls from three countries, one of which the Memo notes the President mentioned twice, are classified as “CONFIDENTIAL//NOFORN.” Comey did not redact this information before sharing Memo 2 with his attorneys.

Memo 3: Information about sources, methods, investigative activity, and foreign relations is classified as “SECRET//NOFORN.” Comey did not share Memo 3 with anyone outside the FBI.

Memo 7: An assessment of a foreign leader by President Trump and discussion of foreign relations is classified as “CONFIDENTIAL//NOFORN.” Comey redacted this paragraph before he sent Memo 7 to his attorneys.

As Comey’s response notes, in a subsequent FOIA, a judge determined just one word was Confidential.

6 The portion of the memorandum the review team determined should be classified as “Confidential” concerned the President’s reference to then National Security Advisor Michael Flynn’s questionable judgment in not having notified the President sooner of a call from the leader of a particular country. (Report at 44). In that context, President Trump compared certain countries to a smaller country and the upclassification treated the name of a smaller country as classified for fear of offending that country. (Id. at 44-45). Mr. Comey’s reaction to the upclassification was: “Are you guys kidding me?” (Id. at 47). A federal court in unrelated litigation brought under the Freedom of Information Act (“FOIA”) ultimately rejected all but one of the subsequent classifications. (Id. at 3 n.4; 47 n.78; 58 n.100 (citing Cable News Network, Inc., v. FBI, 384 F. Supp. 3d 19, 25-26, 36, 38 (D.D.C. 2019))). The classification of the memorandum has been addressed in subsequent litigation and the single word that remains “CONFIDENTIAL” is the name of a single country.

That is, even Richman didn’t release classified information here. There’s even less to suggest Fitzgerald did.

The loaner prosecutors (and James Hayes) just made that up. Which is what Comey noted in a response.

[T]he government’s effort to defame lead defense counsel provides no basis to grant the motion.

[snip]

[T]here is no good faith basis for attributing criminal conduct to either Mr. Comey or his lead defense counsel. Similarly, there is no good faith basis to claim a “conflict” between Mr. Comey and his counsel, much less a basis to move to disqualify lead defense counsel.

Their goal in doing so is now clear: They want to get details of what Richman said while representing Comey after Richman had left and Comey was fired from the FBIm a time period that is irrelevant to charges pertaining to what Richman did as an FBI employee.

And to do that, they’re treating the Comey Memos as akin to some kind of grand insurance fraud (the common crime behind the precedent they’re invoking to conduct a highly invasive privilege review), when it was quite legitimately something you would do — sharing your own memorialization of sensitive events — with a lawyer. Which is probably why, per the original filing, Comey plans to challenge the warrant to get to that material.

Their filing is at least disingenuous about something else. They claim they need Judge Nachmanoff to make a decision about this quickly so that they can meet their trial deadlines.

Prompt implementation of the filter protocol is necessary in this case so the current trial milestones are maintained and met. This has been a point of emphasis from the Court. This desire is also shared by the government.

Here, the potentially protected material could contain exculpatory or inculpatory evidence relevant to the defense and the government. Currently, the government is not aware of the contents of the potentially protected material. As a party to some of the communications contained in the potentially protected material, the defense necessarily has awareness.

But this bid for a filter team already necessarily disrupts the trial deadlines.

As I pointed out here, the current schedule — especially the “the fastest CIPA process you have ever seen in your lives” that Judge Nachmanoff ordered at the arraignment — presumes that Fitzgerald will get clearance quickly.

The schedule proposed by the parties assumes that attorney Patrick Fitzgerald receives his security clearance, or interim clearance, within a reasonable time, and that all the classified materials to be reviewed are made available to the defense within a reasonable time.

You don’t agree to that CIPA schedule and then decide you want to kick Fitzgerald off the case. At that point, you’re effectively fucking with Comey’s Speedy Trial right. If you, as prosecutors, are compelled to identify conflicts, you’re compelled to do so before you build an entire trial schedule around there not being one.

And you especially don’t get to do that when this material has been in DOJ custody since 2019.

If there were reason to believe the discussions that Comey memorialized about Trump’s attempt to kill the Russian investigation included evidence of a crime, Bill Barr would have pursued it back in 2020. He didn’t.

And yet now the loaner prosecutors want to delay Comey’s trial so they can make a mad bid to get material that was clearly privileged.

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Jim Comey Prepares to Prevail at SCOTUS

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On Nicole’s podcast today, I said that many of the criminal issues that will arise from Trump’s politicization of DOJ won’t be all that controversial at SCOTUS (and SCOTUS is least awful on criminal justice issues). But I said one area would likely break new ground: selective and vindictive prosecution.

Jim Comey’s prosecution — and that of everyone else Trump is pursuing — fits poorly in the existing precedents for selective and vindictive prosecution, even while they clearly are vindictive.

Plus, I noted, that Trump’s penchant for yapping about legal cases even as DOJ attempts to protect him from liability in them conflicts with the language of Trump v. USA that — recklessly — puts the President in a prosecutorial function.

And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).

Either Trump is properly in a prosecutorial role, in which case he needs to be at the center of these cases (and interventions like the Eric Adams bribery case), exposed to discovery. Or, his interventions are improper.

The current state of affairs, where DOJ claims the President is immune from discovery, permitted to speak endlessly about criminal cases, yet order up criminal prosecutions, is fundamentally inconsistent with rule of law.

Which is why I’m interested in four people Comey has added to his defense team (while also getting permission to submit a 45-page selective and vindictive prosecution brief, 15 pages extra).

Comey has added:

Donaleski is interesting enough, not least given the loaner AUSA bid to play games with filter teams. Plus, she would have overlapped with Maurene Comey at SDNY (and with some of Jim Comey’s old pals when she first got there, probably).

But the others, especially Dreeben, signal that Comey is going into this with a plan and the expectation that he will have to argue this case before SCOTUS.

This team is a signal that Comey intends to reverse some of the damage done by Trump v. USA.

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

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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,

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

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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

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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

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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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