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Cat Got the Indictment Singer’s [sic] Tongue?

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On October 28, Judge Cameron McGowan Currie — the senior South Carolina Judge who’ll preside over Jim Comey and Tish James’ challenges to Lindsey Halligan’s appointment — instructed the government to give her the grand jury transcripts.

The undersigned has been appointed to hear this motion and finds it necessary to determine the extent of the indictment signer’s involvement in the grand jury proceedings. Accordingly, the Government is directed to submit, no later than Monday, November 3, 2025, at 5:00 pm, for in camera review, all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.

On October 30, Jim Comey submitted a motion describing all the reasons it might be useful for him to see those transcripts, too.

Although those motions must be decided on their own merits, the circumstances described in both motions raise a strong possibility that there were “irregularities in the grand jury proceedings” that would provide a “basis for dismissal of the indictment.” Nguyen, 314 F. Supp. 2d at 616 (citations omitted). Indeed, Judge Currie has already ordered the government to produce for in camera review “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.” ECF No. 95. Mr. Comey has argued that if Ms. Halligan alone secured and signed the indictment, dismissal would be required because she was unlawfully appointed.

[snip]

For similar reasons, disclosure of the grand jury materials is reasonably calculated to provide additional support for Mr. Comey’s argument that he would not have been prosecuted but for President Trump’s animus toward Mr. Comey, including because of his protected speech.

On October 31, the government delivered a package of grand jury transcripts to Judge Currie.

Only, they didn’t include “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.”

Judge Currie exhibited remarkable patience when instructing DOJ, for the second time, to give her all the transcripts.

On October 28, 2025, the undersigned entered an order directing the Government to submit, for in camera review, “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.” ECF No. 95. On Friday, October 31, 2025, the court received a package containing, inter alia, a “Transcript of Grand Jury proceedings on September 25, 2025.” This court has reviewed the transcript and finds it fails to include remarks made by the indictment signer both before and after the testimony of the sole witness, which remarks were referenced by the indictment signer during the witness’s testimony. In addition, the package contains no records or transcripts regarding the presentation of the three-count indictment referenced in the Transcript of the Return of Grand Jury Indictment Proceedings before the Magistrate Judge.

Did DOJ really think Currie is stupid enough for this to work?

What makes all of this exceptionally stupid, though, is that Pam Bondi described reading the transcripts before she ratified the prosecution back on October 31, the same day the transcripts mysteriously weren’t all delivered to Judge Currie.

In addition, based on my review of the grand jury proceedings in United States v. Corney and United States v. James, I hereby exercise the authority vested in the Attorney General by law, including 28 U.S.C. § 509, 510, and 515, to ratify Ms. Halligan’s actions before the grand jury and her signature on the indictments by the grand jury in each case.

So whatever it is that led someone to withhold the most important parts of the Jim Comey transcript, Pam Bondi is now complicit in it.

And all of that will make it more likely that Judge Michael Nachmanoff will himself review the transcripts to see what all the fuss is about.

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Tyler Lemons’ Vindictive and Selective Bill of Particulars

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I want to congratulate Loaner AUSA Tyler Lemons, who after confessing that Kash Patel’s FBI had violated Jim Comey’s Fourth Amendment rights on Sunday, went on to lay out why Comey is right to demand a Bill of Particulars on Monday. As NYT quipped,

the prosecutors who wrote the filing spent as much time suggesting that Mr. Comey had used the confidant, Daniel C. Richman, a law professor at Columbia University, as a conduit to the news media as they did seeking to reject allegations that the indictment was vindictive.

The introduction is one page. The conclusion is 30 words. And before the 25-page discussion competently addressing Comey’s vindictive and selective prosecution claim, the brief spends 15 pages trying to claim that this prosecution caught Jim Comey lying and obstructing an investigation that would merit charges.

Mostly, though, it demonstrates that poor Tyler Lemons can’t sort out what it is he is prosecuting.

Lemons establishes the need to include transcripts omitted from the indictment

Start with transcripts. The government motion itself includes:

  • A transcription of Jim Comey’s May 3, 2017 exchange with Chuck Grassley (before he released a memo describing Trump’s misconduct)
  • A transcription of an exchange Comey had on June 8, 2017 with Susan Collins describing sharing that memo through Richman
  • A transcription of the September 30, 2020 exchange Comey had with Ted Cruz that is charged as Count One of the indictment

In footnotes to the first,

6 The transcript attached to the defendant’s motion non-substantively corrects Senator Grassley’s second question. See C-Span, User Clip: Sen. Grassley Questions James Comey (May 3, 2017), https://www.c-span.org/clip/senate-committee/user-clip-sen-grassley-questions-jamescomey/4853218.

And third transcriptions, Lemon makes observations about the inaccuracy of transcripts Comey included as exhibits to his vindictive and selective motion (Grassley, Cruz) — though neither were transcripts Comey himself produced.

9 The transcript attached to the defendant’s motion non-substantively corrects Senator Cruz’s questions and the defendant’s first answer; the transcript also erroneously adds the word “that” to Senator Cruz’s final question and omits the word “is” from the same question. See, e.g., POLITICO, Archive: Sen. Ted Cruz questions James Comey on Trump and Clinton investigation leaks (Sept. 26, 2025), https://www.politico.com/video/2025/09/26/archive-sen-ted-cruzquestions-james-comey-on-trump-and-clinton-investigation-leaks-1759922.

But Lemons relegates the transcription of the exchange between Comey and Graham from the September 30, 2020 hearing to an exhibit, thereby facilitating his effort to hide that Graham’s question was about a September 7, 2016 CIA referral, and not about the Russian fabricated Clinton plan generally.

The transcriptions of the Grassley-Comey and Cruz-Comey exchange that Comey included in his literal truth motion do not include the inaccuracies Lemons noted. But as a footnote explained, Comey relied primarily on the video he submitted with that exhibit.

For the rest of this brief, references to the exchange between Mr. Cruz and Mr. Comey cite to the Oversight Hearing Video Clip, which provides the most accurate depiction of the exchange. But the Oversight Hearing Transcript is a useful reference as well.

But as Comey notes in his vindictive motion, his literal truth motion, and his request for a Bill of Particulars motion, the indictment itself misquotes the exchange and in no way identifies what specifically Comey lied about.

the text of Count One both misstates the testimony Mr. Comey actually gave and misquotes the question posed by Senator Ted Cruz. See Mot. to Dismiss Indictment Based on Vindictive & Selective Prosecution, ECF No. 59 at 15; Mot. to Dismiss Based on Fundamental Ambiguity & Literal Truth at 2-4.

So as charged, Comey is being prosecuted for an exchange that didn’t happen the way Lindsey the Insurance Lawyer claimed it did. Comey has asked for accurate specifics, and Lemons emphasized the inaccuracies of what is out there.

Lemons can’t distinguish between the investigations and leaks at issue

Now consider the claimed structure of that passage and what it actually says. Doing so reveals that Lemons doesn’t understand what he’s referring to (or, worse, deliberately misrepresents it).

A. The defendant’s service as FBI Director and the Midyear Exam investigation. (pages 2-4)

This section summarizes the declination part of the DOJ IG Report on Midyear Exam. While this section notes that Trump fired Comey (it doesn’t say on what date in May 2017 Trump did so), it doesn’t admit that the ostensible purpose Trump gave for firing Comey pertained to Comey’s treatment of Hillary, not his refusal to shut down the Russian investigation … an oversight (and Mueller evidence) that Comey now has cause to raise in his Reply.

B. The defendant’s correspondence with Daniel Richman—and Richman’s correspondence with the press—regarding the Midyear Exam investigation. (pages 4-8)

This section starts with a description of Dan Richman, describing him as, “a Columbia Law School professor who also served as an FBI Special Government Employee since 2015.” Nowhere does Lemons mention that Richman’s SGE appointment was lapsed at least as late as October 27, nor that Richman left the FBI on February 7, 2017.

It then spends 2.5 pages describing correspondence Comey had with Dan Richman in advance of this NYT flowchart, citing these exhibits:

Then it spends a page describing correspondence relating to this article, the article at the core of Arctic Haze. But it does so backwards. It first describes Comey’s April 23, 2017 email thanking Richman for what he said — on the record — in it. Then it describes emails Richman sent on February 11, 2017, four days after FBI claims he left FBI, soliciting Chuck Rosenberg’s involvement in what would be the April 23 story. There’s no mention of Comey’s involvement, in advance, in that story.

And then, still under the heading of articles about Midyear Exam, Lemons describes texts between Mike Schmidt and Richman, between May 11 and 16, about Comey’s firing, specifically referencing the dinner at which Trump demanded Comey’s loyalty. Those text messages culminate in the publication of this story, “Comey Memo Says Trump Asked Him to End Flynn Investigation,” the story first revealing that Trump asked Comey to let the Flynn prosecution go.

C. The defendant’s disclosure of memoranda concerning meetings with the President and his pertinent Senate testimony. (pages 9-12)

Having already described the publication of the story about the memos, Lemons then describes Comey’s testimony in 2017 about them. He describes Comey telling Grassley on May 3, 6 days before he was fired and 8 days before the Schmidt and Richman texts start, that he had not asked anyone to serve as an anonymous source in news stories about the Clinton or Trump investigations (note, on that day there was no Trump investigation, there was an investigation into others). He describes Comey, three weeks after the story (Lemons doesn’t provide the date, June 8, which is important context to the next section showing Trump wailing about “leaks”) truthfully telling Susan Collins that he asked a friend to share the memo with a reporter.

COMEY: I asked—the president tweeted on Friday [May 12], after I got fired, that I better hope there’s not tapes. I woke up in the middle of the night on Monday night, because it didn’t dawn on me originally that there might be corroboration for our conversation. There might be a tape.

And my judgment was, I needed to get that out into the public square. And so I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a friend of mine to do it.

Which he immediately follows with Ted Cruz’ questions from 2020, as if Richman sharing the memos could be responsive (much less material) to Ted Cruz’ question about asking someone at the FBI to share stuff anonymously.

D. The President’s concern with the defendant’s official conduct. (pages 12-14)

The next bit is central to the Loaner AUSAs’ claim that Trump wasn’t prosecuting Comey for his opposition but instead out of a legitimate concern about leaks. A one page description of Trump’s obsession with what he claimed were Comey’s leaks treats the Richman memos as a leak, even though Comey admitted to releasing them within a month.

Shortly after the defendant was fired, the President began to publicly express his concern that the defendant had leaked (or authorized the leak of) investigative information and had given false or misleading testimony to cover it up. For example, on May 31, 2017, he referenced “the false or misleading testimony by James Comey.” Def. Mem., Dkt. No. 59-4 at 2. On June 9, he posted, “Comey is a leaker!” Id. Two days later, he posted, “I believe the James Comey leaks will be far more prevalent than anyone ever thought possible. Totally illegal?” Id. In July, he reposted a news report stating, “Report accuses material James Comey leaked to a friend contained top secret information.” Id. In October 2017, he posted that “James Comey lied and leaked and totally protected Hillary Clinton.” Id. at 3. In March 2018, the President posted, “Wow, watch Comey lie under oath to Senator G when asked ‘have you ever been an anonymous source … or known someone else to be an anonymous source…?’ He said strongly ‘never, no.’ He lied as shown clearly on @foxandfriends.” Id. at 6.

This passage is triply misleading.

First, sharing the memos was anonymous at first, but it was not a leak, Comey admitted to it within a month, and it was investigative mostly insofar as it predicated an investigation into Trump. It became investigative because Trump fired Comey.

Second, as noted, through the structure of this section, Lemons does a number of things to falsely suggest this could be the charged lie, when it could not, for several different reasons I’ll explain below.

Most importantly, it ignores the nine complaints Trump made about Comey, listed in Comey’s 60 page exhibit of those complaints, before the first one listed in the response, which started with a claim (debunked by the exhibits in this motion) that “Comey was the best thing that ever happened to Hillary Clinton,” to say nothing of Trump’s “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press,” to which the memo release was a response.

E. The defendant’s public posts about President Trump. (page 14)

The next section attempts to show that Trump was concerned about Comey’s “leaking” (that is exposure of Trump’s misconduct) before Comey said anything bad about Trump — but I’m very confused how this sentence — “his motion shows his first social-media post speaking out about the Trump administration (not the President directly) came in June 2017, over a month after he was fired—and after the President had publicly posted about his “false or misleading testimony” — is consistent with Comey giving testimony about Trump’s misconduct and Comey’s accurate prediction Trump would lie about it on June 8, 2017, exactly a month after he was fired (in the hearing in which he told Collins about the memos). Maybe I just don’t understand. Or maybe in his desperation to sell a narrative, Lemons is lying to the court about the substance of Comey’s testimony.

This has the effect of making the memos the chicken and the egg of this investigation, which nevertheless could not be included in either charge against Comey.

F. Law enforcement’s investigations into unauthorized public disclosures. (pages 14-15)

Having already confessed he doesn’t know what a leak is and doesn’t know what FBI employ is, Lemons then introduces his desperate attempt to claim that receiving a briefing that might be about what we now know is Russian disinformation 19 days after not receiving a memo about it that probably emphasizes something else should be recalled when Lindsey Graham asked about it in specific reference (a reference Lemons buries) to memo redacted in a way that would obscure its import.

I will return to this section’s description of the 18 USC 2071 investigation trying to criminalize the non-removal of documents from the FBI as removal from the FBI. (!?!?!) Apparently, on July 21, 2025, Jack Eckenrode and Miles Starr decided that leaving a bunch of documents that were already preserved in FBI servers in an inventory room amounted to removal. Mostly it’s an attempt to indulge Kash Patel’s stupidest conspiracy theories.

But the important point, for the purpose of this filing, is that, under the heading promising information about “unauthorized public disclosures,” Lemons falsely claims an investigation into what would, if true, be an effort to bury evidence, was instead an investigation into sharing it.

G. Appointment of U.S. Attorney Halligan and the indictment. (pages 15-17)

And that’s important because the excuse Lemons offers for the hiring of Lindsey Halligan is Trump’s obsession with wildly inaccurate propaganda about the release of the Arctic Haze file, which leads directly from a John Solomon article treating the NYT article about the Hillary investigation as if it pertained to Russia.

On August 13, 2025, the President posted a link to a Fox News segment with the text, “DOCUMENTS REVEAL JAMES COMEY ASSOCIATE LEAKED CLASSIFIED INFORMATION TO THE NYT.” Donald J. Trump (@realDonaldTrump), TruthSocial (Aug. 13, 2025 at 12:42 ET). 12 The next day, he posted a link to a news article discussed in the segment. Donald J. Trump (@realDonaldTrump), TruthSocial (Aug. 14, 2025 at 7:02 ET). 13 The article detailed FBI documents recently disclosed to Congress and indicated that Richman had admitted “that he was given access by Comey to what turned out to be highly classified information up to the SCI level and sometimes provided information to reporters on an anonymous basis.” John Solomon and Jerry Dunleavy, Comey’s media mole told FBI he shaped Russia narrative, needed ‘discount’ to deny leaking intel, Just the News (Aug. 12, 2025).14 On September 20, 2025, the President posted:

Pam: 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. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.” Then we almost put in a Democrat supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so. Lindsey Halligan is a really good lawyer, and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT

None of this actually helps Lemons, because it suggests Trump hired Halligan specifically to open an investigation into an already declined prosecution.

But it does create a narrative, one Lemons uses to claim that Trump was not out to get Comey because Comey disclosed Trump’s fundamental corruption, but instead because Comey leaked classified information, a claim not backed by a single thing in this filing.

Indeed, what the filing does, in part, is prove that Trump falsely accused Comey of leaking classified information for years, without anything to back that claim.

In Section A, Lemons declines to address that Trump ostensibly fired Comey because of the Hillary investigation, not the Russian one. In Section B, Lemons treated a story about the Trump’s misconduct as instead about Hillary investigation. In Section D, he pretended Trump was concerned about leaking rather than being exposed as corrupt. In Section F, Lemons misrepresents a bogus cover-up claim as instead a leak investigation. In Section G, Lemons relies on a John Solomon post confusing the Hillary investigation with the Russian investigation.

The guy who plans to present all this to a jury in a few months appears unable to distinguish between the Hillary investigations (remember, the Andrew McCabe sourcing Ted Cruz asked about was about the Clinton Foundation, not the emails) and the Russian investigation, which Lemons exacerbates by imagining that the Russian investigation was always about Trump.

Lemons may already recognize that Lindsey the Insurance Lawyer charged the wrong things (which is why Comey’s request for grand jury transcripts is merited).

None of these stories match the elements of the offense

The problem for Lemons is that none of these scenarios fit the elements of the offense for the crimes charged.

For the 18 USC 1001 charge, prosecutors need to prove that Comey knowingly lied about a leak about Hillary he authorized Richman to share anonymously while he was at the FBI.

As a threshold matter, Comey will be able to argue the charges cannot survive, because the hearing scope did not include the Hillary investigations.

1 Before the hearing, the committee agreed that it would be limited to four specific topics: (i) “Crossfire Hurricane,” (ii) the December 2019 Department of Justice Inspector General report’s “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation,” (iii) the Carter Page FISA applications, and (iv) Christopher Steele’s source network and primary sub-source.

So any story about Hillary is, by definition, outside of scope.

The only one of these stories where there’s some evidence that Comey authorized a story about Hillary in which Richman was not named was the November 2016 one. Even by then, however, the FBI was trying to fix Richman’s Special Government Employee.

As for the 18 USC 1505 charge, prosecutors will need to prove that Comey told lies that were intentional that impeded that investigation. Because of the scope of the hearing (and therefore the investigation), they can’t argue the two Hillary stories are material. Comey was aware of the scope of the hearing and Hillary wasn’t part of it.

There’s no way they can argue that Comey should have admitted asking Richman to serve as an anonymous source for the May 2017 story impeded the Senate investigation, because he had admitted that years earlier!!

That leaves just the Lindsey Graham question, which was specifically about whether Comey remembered the CIA referral, dated September 7, that Kash Patel had recently released in redacted — and therefore likely hopelessly misleading — form. As the transcript Lemons buries in an exhibit makes clear, the question — the one the grand jury no-billed — was not whether Comey was briefed; it was whether he recalls getting the document itself (Lindsey misstates what this document even was).

Lindsey: Do you recall getting an inquiry from the CI, excuse me, the intelligence community in September, 2016, about a concern that the Clinton campaign was going to create a scandal regarding Trump and Russia?

Mr. Comey: I do not.

Senator Graham: You don’t remember getting a investigatory lead from the intelligence community, hang on a second … Let me find my document here.

Speaker 3: There it is.

Senator Graham: September the Seventh, 2016, the US intelligence officials forwarded an investigative referral to FBI Director James Comey and Assistant Director of Counterintelligence Peter Strzok regarding US presidential candidate Hillary Clinton’s approval of a plan concerning US presidential candidate Donald Trump and Russian hackers hampering US elections as a means of distracting the public from her use of a private email server. You don’t remember getting that or being talk, that doesn’t …

Mr. Comey: That doesn’t ring any bells with me.

Lemons makes much of the fact that a copy of the referral was found in a storage room at FBI where other Durham materials were found; he claims to have evidence that it was once in the FBI Director’s office (but does not date when that was). That fact will face admissibility problems given Jack Eckenrode’s role in all that, which will in turn elicit questions why Eckenrode continues to base his investigations on what he discovered four years ago was Russian disinformation.

Poor Loaner Lemons will be forced to explain why Brennan was briefing Comey on a topic Comey had been informed of 19 days earlier, and why Comey would write that down as if it were news.

It will not be a slam dunk proving that the reference, HRC plan to tie Trump, pertains to the same SVR documents that the referral did. I know how I would do it. But I also know how a focus on “undermine HRC” just above that will make it easy to present this reference as Brennan (presumably) said he understood it–to be a reference to the victimization of Hillary, meaning Graham’s description of it would unrecognizable to Comey. As this reference appears, it backs Brennan’s conception of how most of the IC (aside from the Cyber Agents who fucked up the Alfa Bank Spectrum Health investigation) viewed this reference, as an attack on Hillary.

Ultimately, the defense to treating this as the basis for the obstruction charge (which I suspect it is) is to lay out how painfully wrong right wingers have been about what happened in 2016 from the start.

In Lemons’ bid to claim there was basis to charge Comey, he instead made it quite clear that none of his claimed issues match the charges as charged.

Which is to say, he made an exceptionally good case that Comey has reason to wonder what the fuck he is actually charged with.

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The Halloween Special Attorney’s Loaner AUSAs’ Loaner AUSA Forgot to Describe Jim Comey’s Imaginary Crime

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Lindsey Halligan’s Loaner AUSAs have submitted their responses to Jim Comey’s initial motions, which I’ve laid out below.

The Tl;dr of the response to the observation that Lindsey was not lawfully appointed (DOJ submitted the same motion in both Comey and Tish James’ case) is that Lindsey was lawfully appointed even though two judges had said she wouldn’t be by the time she was appointed, and if not, then the indictments are still valid because Pam Bondi retroactively appointed Halligan to be a very Special Attorney on Halloween.

No.

Really.

The response to the vindictive and selective prosecution spends a lot of time saying that Lindsey didn’t vindictively prosecute Trump, and Donald Trump’s animus to Jim Comey wasn’t about his First Amendment speech, but about Trump’s claim that Comey leaked information, when the filing doesn’t actually show that Comey did that at all.

Not only that, the filing makes clear the problems with DOJ’s case that Comey lied about authorizing Dan Richman to share information.

None of the times Richman served as a source fit the criteria of Ted Cruz’ question (that is, from when Richman was at FBI, speaking about the Clinton investigation, anonymously, with Jim Comey’s involvement ahead of time).  The closest was for this flowchart regarding Jim Comey’s decision to announce he had reopened the investigation into Hillary’s emails — the act that cost Hillary the election.

The next day, Mr. Richman sent the defendant an email regarding an op-ed he had been asked to write for The New York Times about the defendant’s letter. Gov. Ex. 5 (Oct. 30, 2016 emails). Mr. Richman stated that he was “not inclined” to “write something,” but that he would “do it” if the defendant thought it would “help things to explain that [the defendant] owed cong absolute candor,” and that the defendant’s “credibility w cong w[ould] be particularly important in the coming years of threatened cong investigations.” See id. The defendant responded: “No need. At this point it would [be] shouting into the wind. Some day they will figure it out. And as [Individual 1 and Individual 2] point out, my decision will be one a president elect Clinton will be very grateful for (although that wasn’t why I did it).” See id. The defendant appears to have reconsidered that view shortly thereafter. On November 1, 2016, he emailed Mr. Richman, stating:

When I read the times coverage involving [Reporter 1], I am left with the sense that they don’t understand the significance of my having spoke about the case in July. It changes the entire analysis. Perhaps you can make him smarter.

Let’s imagine the Times had a policy against writing new articles close to elections if the articles might influence the election. Consistent with that policy they would avoid writing this week if sources told them that the FBI was looking at Huma Abedin’s emails.

But let’s imagine that they wrote a very high profile piece in July that sources lead them to now conclude was materially inaccurate. Would they correct it or stay silent because they have a policy to avoid action near elections?

I suspect they would quickly conclude that either course is an “action” and the choices are either reporting or concealing but there is no longer a “neutral” option because of the reporting in July. I also suspect they would resolve very quickly to choose the action of disclosing because to remain silent is to actively mislead, which has a wide range of very bad consequences.

Why is this so hard for them to grasp? All the stuff about how we were allegedly careful not to take actions on cases involving other allegations about which we have never spoken is irrelevant. I love our practice of being inactive near elections. But inactivity was not an option here. The choices were act to reveal or act to conceal.

See Gov. Ex. 6 (Nov. 1–2, 2016 emails) (emphases added).

Mr. Richman responded the next day, stating: “This is precisely the case I made to them and thought they understood. I was quite wrong. Indeed I went further and said mindless allegiance to the policy (and recognition that more evidence could come in) would have counseled silence in july to let hrc twist in the wind.” See id. Mr. Richman emailed the defendant shortly thereafter, writing, “Just got the point home to [Reporter 1]. Probably was rougher than u would have been.” See id.

The defendant emailed Mr. Richman shortly thereafter, entitling the message “Pretty good” and sending a link to a New York Times piece regarding the defendant’s purported options in late October 2016 concerning the Clinton email investigation (Midyear Exam). See Gov. Ex. 7 (Nov. 2, 2016 email chain); Matt Apuzzo and Sergio Peçanha, These Are the Bad (and Worse) Options James Comey Faced, N.Y. Times (Nov. 2, 2016). 4 The defendant wrote: “Someone showed some logic. I would paint the cons more darkly but not bad.” See Gov. Ex. 7 (emphasis added). Mr. Richman responded: “See I *can* teach.” See id. The defendant replied: “Well done my friend. Who knew this would. E so uh fun.”5 See id. (emphasis added).

But the conversation between Richman and Comey is about logistics, not Hillary. Moreover, since it’s a flowchart, it’s not like Richman could be an anonymous source (and the conversation took place in context of doing an overt op-ed).

Additionally, it’s not even clear whether Richman was formally at FBI on that date. His “reappointment,” which had expired in June 2016, was pending as of October 27.

The other examples regarding Hillary postdate the date — February 7, 2017 — Richman left FBI (in the first case, only by four days, but not in a way that reflected Comey’s foreknowledge).

The Loaner AUSAs obscure that this happened after Richman left by not mentioning the date.

For example, in February 2017, Richman emailed Individual 3, a then-government official who had served in high-ranking positions at the FBI and DOJ. Mr. Richman wrote: “Hi [Individual 3] – my pal at the NYT, [Reporter 1] is (along with [Reporter 2], [Reporter 3], and (gag me) [Reporter 4]) is doing a huge piece on the HRC emails. He’s had a ton of background conversations with players and non-players (like me). [Reporter 1] very much would like to talk to you exclusively on background as he tries to understand[] Jim’s decision making to the extent possible. [Reporter 1] asked me to reach out to you. Hence this email. Would you be willing to chat with him?” See Gov. Ex. 9 (Feb. 11, 2017 email chain) (emphasis added). Individual 3 replied in the affirmative and stated that he would “reach out” to the reporter. See id.

The memos’ attempt to prove Comey lied about having received this memo is even sillier.

It claims that an investigative team that included Jack Eckenrode found the memo that Jack Eckenrode could never prove that FBI received as part of the Durham investigation in the storage unit in WDVA FBI Headquarters.

Among the records found were many related to the FBI’s Mar-a-Lago search, the January 06 capitol breach, the Crossfire Hurricane investigation, as well as a copy of the Classified Appendix to the John Durham Special Counsel investigation. Moreover, an additional record discovered as part of this management review process was an original referral by the Central Intelligence Agency (CIA) to former FBI Director James Comey, known as a Counterintelligence Operational Lead (CIOL). This CIOL, believed to have been missing for several years, was dated September 07, 2016 and contained certain intelligence related to the 2016 U.S. presidential election campaign. The CIOL was found in a storage closet adjacent to the Director’s office and was subsequently transported to the 9582 SCIF. Former Director Comey previously testified before the Senate Judiciary Committee that he was unfamiliar with this CIOL as well as its related intelligence.

On top of the wildly inappropriate notion of putting the guy who conducted a witch hunt in charge of validating when evidence supporting his witch hunt happened, this memo doesn’t describe when the memo was moved (and therefore whether it ended up in the FBI Director’s closet under Wray’s tenure), and it sounds like the original from the CIA, still doing nothing to prove it was ever sent to the FBI.

Crazier still, the filing presents Jim Comey’s notes recording (probably) John Brennan briefing Comey on something that might be the content of the CIOL or might be something else entirely … 19 days after FBI allegedly received the CIOL, on September 26, 2016.

In other words, they make a better affirmative case that Comey didn’t receive the CIOL on September 7 than that he did, because if the Brennan briefing on September 26 is about the same topic, why would Brennan have to brief Comey? And we know Brennan believed this was about hacking Hillary, not about a nefarious plot Hillary had.

The Loaner AUSAs obscure that Lindsey’s question was not about that information, but about the CIOL dated September 7, this way:

The discovery of the handwritten notes is relevant considering the defendant’s prior testimony on September 30, 2020. Of note, during that hearing, the defendant was questioned by Senator Graham of South Carolina and Senator Hawley of Missouri. See Gov. Ex. 14. The questions focused on whether the defendant remembered “being taught” of “U.S. presidential candidate Hillary Clinton’s approval of a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private email server.” See id. The defendant responded by stating that “it doesn’t ring any bells with me” and “I don’t know what that refers to” and “I don’t remember receiving anything that is described in that letter.” See id. at 1 and 5. Despite this testimony, the defendant’s handwritten notes dated September 26, 2016, read: “HRC plan to tie Trump.” See Gov. Ex. 13 (Defendant’s handwritten notes).

The actual vindictive and selective prosecution language — the entire filing is attributed to a Loaner AUSA from South Carolina, Kathleen Stoughton, who I guess is on loan to the Loaner AUSAs who signed it — is fine.

If you ignore that the Attorney General of the United States believes she can salvage Lindsey’s appointment and this prosecution by making her into a pumpkin on Halloween Day.

Update: I’ve corrected where the burn bags were found. They were found in FBI HQ in DC, which makes the predication of an investigation in WDVA even weirder.

Links

Response unlawful appointment

Response vindictive and selective

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Tyler Lemons Confesses Kash Patel’s FBI Was Reading Previously Seized Material without a Renewed Warrant

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Lindsey the Insurance Lawyer’s Loaner AUSAs have replied to Jim Comey’s opposition to their demand to a filter protocol to access attorney-client communications with Dan Richman.

Just a reminder, perhaps for their benefit more than yours (because you’re all super smart and can read), a significant part of Comey’s challenge to their rush to get a filter protocol is that any review of this material violated the Fourth Amendment. He argued there were two problems with doing so. First, the warrants were super old, over five years old. And also, because prosecutors charged him with different crimes — 18 USC 1001 and 1505 — than those for which the original warrants were approved.

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.

A. Applicable Law

Courts have repeatedly held that the government must execute search warrants within a reasonable period of time, including with respect to electronic data. As the Fourth Circuit has explained, district courts “retain[] the authority to determine that prolonged retention of nonresponsive data by the government violated the Fourth Amendment.” United States v. ZelayaVeliz, 94 F.4th 321, 338 (4th Cir. 2024) (citation omitted).6 That authority derives from application of the general “Fourth Amendment reasonableness” standard. Id. And “[c]ourts have applied this reasonableness standard to suppress evidence when the government delayed unreasonably in sifting through social media warrant returns for relevant evidence.” Id. (citing United States v. Cawthorn, 682 F. Supp. 3d 449, 458–60 (D. Md. 2023)). In Cawthorn, for instance, the district court held that two years was “an ample amount of time to conduct the necessary review” of digital materials, and “[c]ontinued access to search through the data beyond what the Government ha[d] already identified as responsive in its report would be unreasonable.” 682 F. Supp. 3d at 459 n.7. See id. at n.8 (noting that the good faith exception does not apply “where the error was not with the warrant itself but, rather, the government’s execution of that warrant in the context of a search of electronic data”) (citation omitted).

It is similarly well-established that “[u]nder the Fourth Amendment, when law enforcement personnel obtain a warrant to search for a specific crime but later, for whatever reason, seek to broaden their scope to search for evidence of another crime, a new warrant is required.” United States v. Nasher-Alneam, 399 F. Supp. 3d 579, 592 (S.D. W. Va. 2019) (citing United States v. Williams, 592 F.3d 511, 516 n.2 (4th Cir. 2010)); see also Terry v. Ohio, 392 U.S. 1, 19 (1968) (“The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.”) (cleaned up).

“Given the heightened potential for government abuse of stored electronic data, it is imperative that courts ensure that law enforcement scrupulously contain their searches to the scope of the search warrant which permitted the search in the first place. This is especially true where, as here, the illegal search was conducted at the behest of lawyers–the people in the best position to know what was allowed under the law.” Nasher-Alneam, 399 F. Supp. 3d at 595. A reasonable warrant thus “confine[s] the executing officers’ discretion by restricting them from rummaging through [digital] data in search of unrelated criminal activities.” Zelaya-Veliz, 94 F.4th at 337 (citation omitted).

6 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.

Lindsey’s Loaner AUSAs completely ignore this discussion about the Fourth Amendment, dismissing it with a little wave of their hands. How dare a defendant ask about things like the Fourth Amendment, when we’re trying to get to his texts with his attorney, they ask!

Defendant’s response does not address the underlying premise of a filter protocol. Instead, Defendant first jumps to the underlying search warrants and presumptively declares that the government is conducting an unconstitutional search. This is wrong. The government is not asking to look at the raw returns from prior search warrants. The government is simply asking for a judicially approved filter protocol as to a small and specific subset of evidence that was lawfully obtained consistent with the terms of a federal search warrant.

They excuse doing so because the crimes DOJ investigated from 2017 to 2021 (for which they told investigators in EDVA there was not sufficient evidence to charge either Comey or Dan Richman) are “consistent with” the crime under investigation here, that Comey authorized Richman to share information anonymously (while Richman was still at FBI).

In 2019 and 2020, the government obtained a series of search warrants during an ongoing investigation into violations of 18 U.S.C. §641 (Theft and Conversion of Stolen Government Property) and 18 U.S.C. §793 (Unlawful Gathering or Transmission of National Defense Information). In ways consistent with the current prosecution, the prior government investigation focused in part on the relationship and communication between the Defendant and Daniel Richman (“Richman”). [my emphasis]

That “consistent with” is the only excuse they gave for snooping in these communications in search of evidence for a different crime.

And that’s important because, in an attempt to poo poo Comey’s concern about the investigative team’s access attorney-client communications, they confess that the FBI has been snooping through this material.

The government has proceeded with an abundance of caution in reviewing lawfully obtained evidence from the 2019 and 2020 search warrants. While reviewing evidence that was previously filtered by the Defendant’s attorney, an FBI agent noted that some of the communications appeared to involve an attorney and client. At that time, a prophylactic decision was made to remove the FBI agent from the investigative team and pause any further review of the evidence from the 2019 and 2020 search warrants. This was orally communicated to the investigative team and communicated through written instruction (email) to the lead investigators.

This sequence of events is what the Defendant relies on to assume taint. The presumption is wrong. No members are of the investigative team have been tainted by attorney-client privileged material. However, when undersigned counsel joined the prosecutorial team, a decision was made for the quarantined evidence to remain that way to allow the Court to implement a filter protocol that completely removes any concern. The Defendant questions the government’s ability to safeguard privileged material. But the reality is that the government has proceeded with the utmost caution and respect for privileged material. [my emphasis]

Let’s lay this out in detail:

  • “While reviewing evidence that was previously filtered by the Defendant’s attorney:” We have been accessing this material without a new warrant
  • “[A]n FBI agent noted that some of the communications appeared to involve an attorney and client:” An FBI Agent we won’t otherwise identify discovered there were attorney-client communications in there
  • “[A] prophylactic decision was made to remove the FBI agent from the investigative team:” a decision was made [by the FBI General Counsel, who we will not name] to preserve the general investigation remove this particular agent from this particular investigative team
  • “This was orally communicated to the investigative team:” There’s no paper trail of the entire investigative team being told to stop
  • “[A]nd communicated through written instruction (email) to the lead investigators:” only the lead investigators (who may include the FBI agent in question) got written notice, meaning everyone else is carrying on as they were
  • “[W]hen undersigned counsel joined the prosecutorial team, a decision was made:” We don’t want to put our law licenses on the line, so instead we’re demanding a filter protocol without first getting a warrant

The initial reference to “quarantined evidence” (bolded above) must be in the page of this filing that is redacted. So it’s not clear whether it refers to just “five text threads identified” in Richman’s original privilege log. It doesn’t appear to be refer to the entire vat of materials from Richman, the one still accessible to some group of FBI Agents. And at least from the unredacted section, I see no explanation for what the attorney-client communication is, and whether Richman failed to identify it or whether it somehow escaped from that filter. Further, I see no explanation of whether that attorney-client communication remains accessible to investigators.

What I do know is that, in their bid to accelerate this process, Lindsey’s Loaner AUSAs claimed that Comey, “used current lead defense counsel [Patrick Fitzgerald] to improperly disclose classified information,” insinuating it was a crime for Jim Comey to release unclassified information about Donald Trump’s misconduct to the press. That is, they invoked crime-fraud exception pertaining to communications that — because they post-date the time Dan Richman left the FBI– are completely irrelevant to the charges at issue here, and because they were unclassified, were legal to share (albeit, per DOJ IG, a violation of FBI guidelines).

They insinuated it would be a crime to say true, unclassified things about Donald Trump, parroting the craziest theories of the fever conspiracists.

And that makes me very skeptical that these Loaner AUSAs have quarantined any of the problems at issue here.

Update: Reviewing this made me realize something. Prosecutors first started pressuring Comey for this filter protocol on October 10. They requested it even before providing discovery on October 13 (and attempted to delay discovery on most stuff for a week). Only after that did they confirm to Comey that Dan Richman is the one DOJ had charged him with lying about authorizing to share information 20 days earlier.

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Jim Comey and the Crown Jewels of the Fevered Conspiracy against Rights Conspiracy

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For a number of reasons, I’m not as convinced as others that right wing blowhard Mike Davis’ insinuation that a grand jury scheduled to be seated in Fort Pierce, FL, in January would serve the purpose of stitching together all his feverish conspiracy theories into a conspiracy against Trump’s rights case.

What if Mike Davis is telling the truth, for once?

But this post assumes that his comments do reflect inside knowledge.

That is, this post considers the likelihood that someone — Jack Eckenrode would be part of that team, possibly Deputy FBI Director Andrew Bailey, who was installed in September but has been unseen aside from comments on public corruption a few days ago — has a plan to pull together the investigative work done in various places, to present it to a grand jury in Trump’s current residence, under a theory that some group of meanies have been conspiring against Trump for a decade.

For example, the 302 reports of interviews tied to a WDVA investigation, conducted in attorneys’ offices, might be presented in January to the SDFL grand jury.

[A] host of former F.B.I. officials voluntarily sat for interviews, according to people familiar with the matter.

Witnesses in the case were questioned by a combination of civil lawyers — not criminal prosecutors — from the Western District of Virginia, as well as criminal prosecutors from the neighboring Eastern District of Virginia and F.B.I. agents. To reassure witnesses that they were not targets of the investigation, witnesses were allowed to be interviewed at their lawyers’ offices, rather than at government buildings.

The specious referral of John Brennan for lying? Sent to Florida as part of a claim it was a conspiracy to harm poor Donald Trump. Tulsi Gabbard’s inability to distinguish the DNC server from voting machines? Off to Florida, as if it were credible.

And, importantly, whatever material prosecutors obtained by using the frivolous EDVA Jim Comey prosecution as a pretext? Sent to Florida to be presented to a different grand jury in January to support a conspiracy indictment.

The attorney-client breach hints that the risk goes beyond this indictment

The need to assume that something like that is happening (wherever it might be located) is, I think, a better explanation for some of the motions Jim Comey filed than Ben Wittes’ theory that Comey is just stacking up ways to get this indictment dismissed.

It’s certainly possible that when Lindsey Halligan first rolled out one failed and one successful indictment, Comey and Patrick Fitzgerald thought this would be easy to defeat. This particular indictment, obtained by someone playacting as US Attorney, should be.

But almost immediately, the loaner AUSAs started trying to dick around, first trying to buy an extra week on discovery because Comey planned to submit two rounds of pretrial motions, then demanding that Comey have sharply limited access to the discovery.

More alarming still, on October 10, before handing over any discovery, prosecutors started pressuring Comey to adopt a filter protocol so they could access content seized from Dan Richman in 2020. When they submitted a request for such a filter team on October 13, they did not disclose — not publicly, at least — that the primary investigators on the team had already peeked at the privileged material. When they tried to accelerate that request for a filter team on October 19, they falsely claimed that Comey’s decision to share a memo about Donald Trump’s misconduct in 2017 implicated Fitzgerald in leaking classified information: “the defendant used current lead defense counsel to improperly disclose classified information.”

It’s not clear when prosecutors first told Comey that investigators had accessed his attorney-client privileged content, but the first time Comey’s team mentioned it (in redacted form) was in their response to that bid to accelerate the process of a filter team on October 20, almost a month after the indictment. Judge Nachmanoff’s order denying the government’s request to accelerate the process revealed some of what Comey had described under seal (making at least the first Comey filing a judicial record under Fourth Circuit law that someone could petition to liberate).

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.

When prosecutors filed that bid to accelerate getting access to Comey’s privileged communications, when they claimed that Fitzgerald committed a crime by receiving unclassified CYA memos documenting Trump’s misconduct from Comey (hinting that they want to access Comey’s privileged material by invoking a crime-fraud exception), it became clear this prosecution was just one prong of the larger witch hunt. And whenever it was that prosecutors first alerted Comey that they had snooped in his privileged communications, the claim that sharing unclassified memos documenting Trump’s misconduct was criminal was also the first hint that this “spill” was not an accident.

Indeed, the repeated invocation by the loaner prosecutors of Fed. R. Evid. 502(d) to suggest that a waiver of privilege here, in the EDVA case, would not waive privilege somewhere else (which is the opposite of how they’re treating material seized from Dan Richman — they’re treating his successful invocation of privilege five years ago as waiver here)…

Fed. R. Evid. 502(d) (providing that a court may “order that [a] privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.”)

…. May be a confession in the opposite world of Trump’s DOJ that they’ve already gotten access via a claim of crime-fraud exception somewhere else and need a waiver here to introduce it at trial.

Someone helped themselves to this content (possibly with the assistance of a Trump-installed judge), and that someone seems to imagine it was a crime for Jim Comey to reveal Trump’s misconduct in 2017, an act that is not directly implicated in either the existing charges or the no-billed one but would be foundational to the fever dreams of a conspiracy against rights case.

The intersecting investigations

This is probably a good time to review all the investigations Republicans are drawing on here, which I’ve summarized in this table (I’m just including DOJ and DOJ IG investigations; there are also some Congressional investigations that generally were riddled with logical and evidentiary problems).

There are three Senate exchanges with Comey at issue in his prosecution.

First, there’s the questions Chuck Grassley asked on May 3, 2017 that Ted Cruz invoked when he asked the questions at issue in the indictment.

SEN. GRASSLEY: Director Comey, have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?

MR. COMEY: Never.

SEN. GRASSLEY: Question two on [sic] relatively related, have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation?

MR. COMEY: No.

By context, this was a general question (and as such it could include Item B in the table). Grassley probably imagined it included questions like, Did Comey (or anyone he authorized) leak details of his briefing to Trump about the Steele dossier? Did Comey (or anyone he authorized) leak details on the intercepts capturing Mike Flynn undermining sanctions? Did Comey (or anyone he authorized) leak details about the Clinton investigation, possibly including the Russian disinformation that led him to make the prosecutorial decision on it.

One thing Chuck Grassley’s question could not have referred to were the memos documenting Trump’s misconduct, Item D, because Comey only shared them with Dan Richman after Trump fired Comey on May 9, six days later. Even if Comey did authorize Richman to share them (he did, but the terms on which he did so are likely contested), he had not shared them yet, when he answered this question. Per the IG Report on this topic, Comey shared the memos first with Fitzgerald on May 14, 11 days after Grassley’s question, then shared just one memo with Richman on May 16, two days later, the NYT story on the memo came out that day, May 16.

Then there’s Andrew McCabe’s rebuttal of details about the Clinton Foundation, which was the explicit topic of Ted Cruz’ questions on September 30, 2020 and the alleged lie charged (but miscited) in the indictment.

SEN. CRUZ: On May 3, 2017 in this committee, Chairman Grassley asked you point blank “have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?” You responded under oath “never.” He then asked you “have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton administration.” You responded again under oath, “no.” Now, as you know, Mr. McCabe, who works for you, has publicly and repeatedly stated that he leaked information to The Wall Street Journal and that you were directly aware of it and that you directly authorized it. Now, what Mr. McCabe is saying and what you testified to this committee cannot both be true; one or the other is false. Who’s telling the truth?

MR. COMEY: I can only speak to my testimony. I stand by what, the testimony you summarized that I gave in May of 2017.

SEN. CRUZ: So, your testimony is you’ve never authorized anyone to leak. And Mr. McCabe when if he says contrary is not telling the truth, is that correct?

MR. COMEY: Again, I’m not going to characterize Andy’s testimony, but mine is the same today. [my emphasis]

A footnote in Comey’s literal truth motion describes the agreed-upon scope of the September 30, 2020 hearing, which included neither the Clinton email nor the Clinton Foundation investigation, so Cruz’ question, to the extent it pertained to McCabe, was fundamentally out of scope for the hearing and therefore could not be claimed to be addressing material to the topics of the hearing.

1 Before the hearing, the committee agreed that it would be limited to four specific topics: (i) “Crossfire Hurricane,” (ii) the December 2019 Department of Justice Inspector General report’s “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation,” (iii) the Carter Page FISA applications, and (iv) Christopher Steele’s source network and primary sub-source.

If this ever gets to trial there will be about fifty ways to prove that Comey’s answer to this question could not be material to what the Senate imagined it was doing.

But to use Cruz’ poorly worded questions to charge Comey, Halligan applied it to the Dan Richman stuff.

Since Halligan claims this about Hillary (which, again, was not material to the hearing), she must be applying it to Item B, the only one of these items known to include both Richman and Hillary, the SVR memos claiming that Loretta Lynch was helping Democrats deal with the Hillary investigation (and also claiming that Jim Comey was going to make the Hillary investigation right up until election day, which he in fact did).

Even then, there’s a problem for both known stories attributed to Richman. For the earlier one — the one that could be included in the scope of Grassley’s question and which is the most obvious story addressed in the indictment — Richman was not anonymous. Mike Schmidt quoted him three times in that story.

“Jim sees his role as apolitical and independent,” said Daniel C. Richman, a longtime confidant and friend of Mr. Comey’s. “The F.B.I. director, even as he reports to the attorney general, often has to stand apart from his boss.”

[snip]

Confidants like Mr. Richman say he was constrained by circumstance while “navigating waters in which every move has political consequences.”

[snip]

Mr. Richman sees no conflict, but rather “a consistent pattern of someone trying to act with independence and integrity, but within established channels.”

“His approach to the Russia investigation fits this pattern,” he added.

Richman was anonymous in the Comey memo story, but he was also no longer at the FBI when he shared it.

Finally, there’s the question Lindsey Graham asked on September 30, 2020, which was the subject of the failed charge in the no-billed indictment, Item C.

Lindsey: Do you recall getting an inquiry from the CI, excuse me, the intelligence community in September, 2016, about a concern that the Clinton campaign was going to create a scandal regarding Trump and Russia? Mr. Comey: I do not.

Senator Graham: You don’t remember getting a investigatory lead from the intelligence community, hang on a second … Let me find my document here.

Speaker 3: There it is.

Senator Graham: September the Seventh, 2016, the US intelligence officials forwarded an investigative referral to FBI Director James Comey and Assistant Director of Counterintelligence Peter Strzok regarding US presidential candidate Hillary Clinton’s approval of a plan concerning US presidential candidate Donald Trump and Russian hackers hampering US elections as a means of distracting the public from her use of a private email server. You don’t remember getting that or being talk, that doesn’t …

Mr. Comey: That doesn’t ring any bells with me.

This question was based off the redacted version of a CIA memo addressed to, but not provably sent to the FBI, in 2016. The redaction almost certainly hides critical details about the memo to say nothing of details that should have led everyone to realize they were based on an SVR fabrication. As such, Graham’s question asked Comey not about the memo as it would have been perceived if it actually were received by FBI in 2016 (something John Durham was never able to prove), but a memo that Kash Patel retconned after the fact. Even if FBI did receive the memo, Comey would not recognize it as Graham described it.

This, along with Comey’s decision to share his CYA memos, which led to the appointment of Robert Mueller as Special Counsel, are the crown jewels of the fevered conspiracy against rights conspiracy theory.

Right wingers claim to believe that the FBI had reason to know that Hillary wanted to frame Donald Trump in 2016, and so when “she” shared information with the FBI — the Steele dossier and the Alfa Bank anomalies, though Hillary didn’t share the Steele dossier and affirmatively did not authorize sharing the Alfa Bank anomalies — the FBI should not have investigated them (which, in the case of Alfa Bank, they barely did, because they assumed Hillary was trying to frame Trump!). Right wingers claim to believe that the Steele dossier was central to the investigation of Donald Trump and the claim that Russia wanted to help Trump get elected. And they claim to believe Comey broke the law by sharing his own CYA memo of Trump. None of that is true. But that’s now become an object of faith in the cult of Donald Trump. And that’s why this investigation into Comey is critical to any investigation going on somewhere else.

Lindsey Halligan did not, overtly, charge either one of those things — the inaccurately redacted reference to an SVR fabricated memo alleging a Clinton Plan or Richman’s anonymous sharing of the Comey memos with Mike Schmidt. But that is why the vague language in Count Two of the existing indictment — and the loaner AUSAs’ claim that sharing the memo was a crime — is such a problem.

On or about September 30,2020, in the Eastern District ofVirginia, the defendant, JAMES B. COMEY JR. did corruptly endeavor to influence, obstruct and impede the due and proper exercise of the power of inquiry under which an investigation was being had before the Senate Judiciary Committee by making false and misleading statements before that committee.

Halligan couldn’t get the jury to indict Comey for the Lindsey Graham question. But the Lindsey Graham question was material to the topic of the hearing, and central to the fever dream. So it’s possible she used the charged alleged lie about Andy McCabe that Halligan is already overtly applying to Dan Richman as a way to get the grand jury to approve an obstruction case that would feed the fever dream.

That is, referring back to my table above, it’s likely Halligan used an out-of-scope question about Item A to charge Item B so as to create a prosecution for Items C and D.

Comey’s motions are necessary to this case, but also serve to stave off more

All that makes clear why two of the motions Comey filed Thursday are necessary. One — a motion to dismiss based on literal truth — arises from the shoddiness of the questions Ted Cruz asked; it was the only one that Fitzgerald mentioned at the arraignment.

The two others — one asking to obtain grand jury transcripts and another asking for a Bill of Particulars — are necessary to pin down whether the charged lie (which by description should be Item B on the table, even though Richman was not anonymous in the story in question) are actually what she got a grand jury to indict, whether that is the basis for the obstruction charge, and whether what Halligan said in the grand jury matches what the loaner AUSAs (who took several days before they’d even tell Comey who the people referred to in the indictment were) imagine they’ll present to a jury at trial.

Here’s how Comey describes the possibility of head fakes at trial in the Bill of Particulars motion.

Count Two charges Mr. Comey with “making false and misleading statements” at a four-hour hearing in which he was questioned on topics ranging from the FBI’s Crossfire Hurricane investigation, to the investigation into Hillary Clinton’s alleged mishandling of classified information, to white supremacist activities in the United States. Under the indictment as written, the government could wait until trial to specifically allege that any one, or several, of Mr. Comey’s statements over a four-hour hearing forms the basis for its prosecution. The government could also wait until trial to select any topic of investigation covered at the hearing as the one Mr. Comey allegedly endeavored to obstruct, and unfairly surprise Mr. Comey.

And here’s how he raised it in his bid to get grand jury transcripts.

Disclosure of the grand jury materials is also required to ensure that the government does not seek to try Mr. Comey for alleged false or misleading statements that differ from those on which the grand jury was asked to indict. See Russell v. United States, 369 U.S. 749, 765 (1962).

But there’s also the possibility that to pull off this trick — using an out-of-scope question about Item A to charge Item B — Halligan relied on privileged content.

When DOJ investigated Richman from 2019 to 2021 as the source for Mike Schmidt, they never found proof that Comey authorized him to share that information, details of the SVR content making false claims about the investigation into Hillary Clinton. But when DOJ IG investigated Comey in 2019 about his memos, he told them that he authorized Richman to share the memo about Trump.

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.”

So there are communications between Comey and Richman (and possibly Fitzgerald) from May 2017 authorizing him to share information with Mike Schmidt. They’re almost certainly in the batch of stuff Richman said was privileged in 2020.

And that’s the kind of thing that might lead a grand jury to believe that Comey authorized Richman’s earlier conversations with Schmidt. Neither would match the details of Cruz’ question. Richman was still at the FBI when he was the source for Item B, but not anonymous. Richman was anonymous when he was the source for Item D, but he was no longer at the FBI (in any case, Comey notes in his literal truth motion that Richman “was a Special Government Employee living fulltime in New York”). But you could see how grand jurors might get that confused. Or, you could see how someone already breaking every rule of legal ethics would wildly conflate all of that.

And that’s part of what Comey is pursuing with his bid to obtain the grand jury transcripts: he suggests that Special Agent Miles Starr may have accessed attorney-client information before presenting to the grand jury.

[T]he agent who served as a witness in the proceedings may have been exposed to Mr. Comey’s privileged communications with his attorneys and thus may have conveyed that information to the grand jury.

Redacted passages describe that that same day he likely presented to the grand jury, FBI Agent Miles Starr, “alerted the FBI Office of the General Counsel” something redacted “involving Mr. Comey and his attorneys,” which suggests — Comey argues — that Starr was apparently aware “of his potential exposure to privileged material” when serving “as a witness presenting evidence to the grand jury in this case.”  Which, in turn, supports Comey’s hypothesis that Starr used privileged information to get the indictment.

Third, the record suggests that an FBI agent who testified before the grand jury was potentially tainted by privileged communications between Mr. Comey and his attorneys, one of whom was likely Mr. Richman, yet the agent still proceeded to testify in front of the grand jury. There is thus a serious concern that the grand jury may have improperly relied on privileged information.

[snip]

That information apparently related to certain attorneys for Mr. Comey, including Mr. Richman. See id. Nevertheless, the agent testified before the grand jury that same day, and given the content of the resulting indictment, it is clear that his testimony must have referenced Mr. Comey’s interactions and communications with Mr. Richman. This created a high risk that privileged information was presented to the grand jury by a tainted case agent.

If that were true — if Starr relied on information obtained without a warrant specific to the crimes under investigation — then Comey would have a Fourth Amendment challenge to the entire thing.

Fighting a battle in December to win a fight in October

Comey has a clear need for more clarity about whether they’re going to pull a headfake. But one reason I suspect this is not the only reason to seek that clarity has to do with timing.

Consider this comment in his request for grand jury materials, which argues he needs the grand jury materials to adjudicate his vindictive prosecution motion (just a page and a half of which asks for discovery).

For similar reasons, disclosure of the grand jury materials is reasonably calculated to provide additional support for Mr. Comey’s argument that he would not have been prosecuted but for President Trump’s animus toward Mr. Comey, including because of his protected speech. See generally Mot. to Dismiss Indictment Based on Vindictive & Selective Prosecution, ECF No. 59. Objective evidence establishes that the President harbors such animus—he has spent the last eight years publicly attacking Mr. Comey’s speech and character and calling for Mr. Comey to be prosecuted. See id. at 4-8. The record also shows that President Trump “prevailed upon [Ms. Halligan] to bring the charges . . . such that [she] could be considered a ‘stalking horse.’” See id. at 21-22 (citing United States v. Sanders, 211 F.3d 711, 717 (2d Cir. 2000)). In turn, the government’s manipulation of the prosecutorial process, including its repudiation of the views of every career prosecutor who assessed the case, makes clear that Mr. Comey would not have been prosecuted but for President Trump’s animus. Id. at 22-26.

Although dismissal of the indictment is warranted on the record as it stands, disclosure of the grand jury materials would bolster Mr. Comey’s arguments. Having served as his personal attorney and as a White House Official, Ms. Halligan has a close, longstanding relationship with President Trump. Id. at 11-12. And even though Ms. Halligan lacks prosecutorial experience, President Trump appointed her for the specific purpose of bringing this prosecution against Mr. Comey and other perceived political opponents. Id. at 23-24. Accordingly, there is a substantial risk that during her presentation to the grand jury, Ms. Halligan made statements that would support Mr. Comey’s motion to dismiss. Such “irregularities in the grand jury proceedings” would “create a basis for dismissal of the indictment” and thus warrant disclosure of the grand jury materials. Nguyen, 314 F. Supp. at 616 (citations omitted).

According to the current schedule, the hearing on this motion will be November 19. The request for grand jury transcripts won’t be fully briefed until one day later, and the hearing for it will take place after a Thankgiving break, on December 9.

This case could be — is likely to be, at least based on a disqualification of Lindsey Halligan — over by December 9.

Similarly, Comey asks for a Bill of Particulars to help wade through both the discovery he got and the stuff he did not get.

The discovery produced to date does not “fairly apprise [Mr. Comey] of the charges against him so that he may adequately prepare a defense and avoid surprise at trial.” Sampson, 448 F. Supp. 2d at 696 (cleaned up). The government produced voluminous discovery that includes some, but not all, documents from multiple different FBI investigations involving multiple districts.

[snip]

A bill of particulars can also be necessary to allow the defendant to request materials under, and the court to monitor the government’s compliance with, Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. See United States v. Trie, 21 F. Supp. 2d 7, 25 (D.D.C. 1998) (noting that the scope of the government’s Brady obligations could be determined “once it has provided the bill of particulars”).

[snip]

Accordingly, without knowing whether, and how, Mr. Richman allegedly acted as an anonymous source, Mr. Comey cannot ascertain whether the government has fulfilled its obligations under Brady. See Trie, 21 F. Supp. 2d at 26. For example, if the government contends that Mr. Richman acted as an anonymous source in the articles that were the subject of the “Arctic Haze” investigation, the defense would request that entire investigative file (which has not been produced), as well as information about all other individuals the government identified as possible sources of information (which has also not been produced). 5 Such materials would enable the defense to demonstrate—as government investigators previously found, see Mot. to Dismiss Indictment Based on Vindictive & Selective Prosecution, ECF No. 59 at 9-10—that there was insufficient evidence to believe that Mr. Richman was the source of that information. By contrast, if instead the government contends that Mr. Richman was authorized to act as a source in a different article, the defense could tailor both its Brady requests and trial defense accordingly. The defense should not be required to dig through tens of thousands of pages of incomplete discovery to guess at what it is defending against—only to be sandbagged by the government at trial.

Comey’s point about the Arctic Haze investigation is of particular note, given that DOJ chose only to pursue potential sources who would protect Comey, not those who would not, and Richman claimed that Mike Schmidt, who wrote that article with several other journalists, already knew a bunch about the SVR documents before asking him about it.

After discussing the status of investigative leads and resources available with the U.S. Attorney’s Office and Department of Justice’s National Security Division (DOJ NSD), the FBI investigative team was directed to interview only those officials who might have had a motive to protect Comey. Therefore, the FBI only interviewed eight of these officials who consisted mainly of former FBI officials.

Given a delay in Fitzgerald getting clearance, a Bill of Particulars might help him make the case to unseal classified information he won’t delay until that time. But any Brady violations discovered after getting one, if this motion succeeds, would also come after this case might be over.

But what these filings may do — especially the grand jury one — is affect several things going on, starting this week.

As noted, Judge Cameron McGowen Currie has ordered the government to give her the transcripts from both grand juries by tomorrow.

The undersigned has been appointed to hear this motion and finds it necessary to determine the extent of the indictment signer’s involvement in the gra.nd jury proceedings. Accordingly, the Government is directed to submit, no later than Monday, November 3, 2025, at 5:00 pm, for in camera review, all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.

It’s genuinely unclear why she needs them, but it’s possible that by laying out Comey’s concern about privileged material in the grand jury, that will affect Judge Currie’s review.

Comey noted that Currie had already asked for these transcripts (which Nachmanoff surely noticed, since she did so in his docket).

Indeed, Judge Currie has already ordered the government to produce for in camera review “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.” ECF No. 95. Mr. Comey has argued that if Ms. Halligan alone secured and signed the indictment, dismissal would be required because she was unlawfully appointed.

Comey will not prevail on his motion for the grand jury transcripts until after the vindictive prosecution motion is briefed. But there’s nothing to stop Nachmanoff from making the same request that Currie did, to receive the transcripts for in chambers review. Similarly, there’s nothing to prevent William Fitzpatrick, the Magistrate Judge who’ll hold a hearing on the privilege question this Wednesday, to do the same.

But there’s one other way to think about this. If this prosecution continues as scheduled (as noted, Comey just asked for a delay in the CIPA schedule until Fitzgerald is cleared, which makes that a very big if), then the trial would happen — to much media attention — one week before this grand jury is seated in January.

Prosecutors are currently trying to preserve asymmetry in knowledge, withholding parts of these investigative files and remaining coy about how they snuck a peek in his privileged communications.

But on top of the necessary information these motions would give him to prepare for trial, they also erode that asymmetry, in ways that may help defeat not just this prosecution, but the larger fever dream one.

Relevant links

DOJ IG Investigation into McCabe

DOJ IG Investigation into Hillary’s email and Classified Annex

DOJ IG Investigation into Comey’s Memos

Durham Report and Classified Annex

Redacted memo about “Clinton Plan”

Arctic Haze Investigation Documents

NYT, April 22, 2017: Comey Tried to Shield the F.B.I. From Politics. Then He Shaped an Election.

NYT, May 2016: Comey Memo Says Trump Asked Him to End Flynn Investigation

Timeline

September 25: Indictment

September 29: Guidance from FBI OGC regarding those exposed to tainted information

October 8: Arraignment; Comey signs but government does not return discovery order

October 13: Government moves for a filter protocol

October 15: Government first informs Comey the false statements charge is about Dan Richman and Hillary Clinton

October 19: Request to accelerate privilege review

October 20:

October 27:

October 28: Judge Cameron McGowan Currie orders prosecutors to submit: “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts”

October 29:

  • Judge Nachmanoff orders Magistrate Judge William Fitzpatrick to preside over filter review questions
  • Classified material delivered to SCIF; Fitzgerald can access just one-third of material

October 30:

November 2: Reply to motion for filter protocol

November 3:

  • Responses to first motions due
  • Grand jury transcripts due to Judge Currie

November 5: Filter review hearing before Magistrate Judge Fitzpatrick

November 10: Reply to first motions due

November 13:

  • Responses to second motions due
  • Motion hearing on motion to disqualify

November 19: Motions hearing for first motions

November 20: Reply to second motions due

December 4: Fitzgerald to be fully cleared, permitting his first full review of classified evidence

December 9: Motion hearing for second motions

December 18: Proposed new CIPA deadline

January 5: Jury trial

January 12: Fort Pierce grand jury convenes

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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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“The Indictment Signer:” Lindsey Halligan’s Time in the Grand Jury

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The loaner AUSA in the Tish James case, Roger Keller, has responded to Attorney General James’ request that they be ordered to follow the rules (he even authored his own document, unlike the Comey loaner AUSAs). I’ll come back to it but it is … inadequate to the task, though it cites liberally and faithlessly from the DC Circuit opinion upholding part of the gag on criminal defendant Donald Trump.

In any case, that may be far less important a development than the order that Judge Cameron McGowen Currie gave in both the James and Comey cases.

As happened with the other challenges to Trump’s unlawfully appointed US Attorneys, Currie (a senior judge from another District within the same Circuit) was appointed by Fourth Circuit Chief Judge Albert Diaz to preside over the challenge to Lindsey Halligan’s appointment. While Comey included Halligan’s appointment paperwork in his challenge, James (who filed hers before she got any discovery) did not.

In any case, Currie wants more. She ordered DOJ to file, “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.”

The undersigned has been appointed to hear this motion and finds it necessary to determine the extent of the indictment signer’s involvement in the grand jury proceedings. Accordingly, the Government is directed to submit, no later than Monday, November 3, 2025, at 5:00 pm, for in camera review, all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts. In camera review is appropriate given the secrecy requirements applicable to grand jury proceedings. Fed. R. Crim. P. 6(e)(2).

Currie may need these simply to understand what the remedy would be if she ruled for Comey and James. As far as we know (and as news reports cited in both motions claim), unlike other challenges to Trump’s unlawful US Attorney appointments, Halligan was the only one present for the presentment, meaning if her appointment is unlawful, the indictments have to go away. Both Comey and James are arguing for dismissal with prejudice, though the argument is less compelling in James’ case (because unlike Comey, the statute of limitations did not expire). So Currie needs to understand how much of the case relies on Halligan’s presence.

Whatever Currie’s goal, reviewing these transcripts will likely to be exceedingly damning for Halligan, whom Currie refers to not as the “interim US Attorney” or even (as James referred to her) as the “purported interim US Attorney,” but as the “indictment signer.”

After all, they will show that Dan Richman gave testimony that debunked the very premise of the indictment against Comey; such a review may show that Halligan simply neglected to share that transcript with grand jurors. More damning still, it’ll reveal the testimony of James’ great-niece, Nakia Thompson, describing that she has paid almost nothing in rent since she lived in the home James bought for her in 2020, undercutting the entire claim that Attorney General James was intending to use the house as an investment property. It’ll reveal that Halligan got an Alexandria grand jury to indict James, bypassing those grand jurors in Norfolk who had heard Thompson’s testimony.

But Judge Currie may find something else Comey argued compelling: that because Halligan was not lawfully authorized to be US Attorney, Halligan’s mere presence in the grand jury was a violation of grand jury secrecy.

Here, Ms. Halligan’s unlawful appointment tainted the structural integrity of the grand jury process. Absent Ms. Halligan’s unlawful title, she would not have been able to enter the grand jury room, let alone present and sign an indictment. Indeed, the Federal Rules of Criminal Procedure 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 the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings”—a principle that “is ‘as important for the protection of the innocent as for the pursuit of the guilty.’” United States v. Sells Eng’g, Inc., 463 U.S. 418, 424 (1983) (citations omitted). By limiting participation to government attorneys “authorized by law,” Rules 1 and 6 maintain the secrecy of the grand jury proceeding and reinforce that an unlawfully appointed attorney’s presentation to the grand jury undermines the structure of that proceeding. The fundamental error here thus allows a presumption that Mr. Comey was prejudiced, “and any inquiry into harmless error would [require] unguided speculation.” Bank of Nova Scotia, 487 U.S. at 257.

Judge Currie may have very modest reasons for requesting these transcripts. But they will, almost inevitably, raise larger questions about both Halligan’s conduct, and that of the people who appointed her.

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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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Lindsey Halligan’s Grand Jury Violation, with Love to Aileen Cannon

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Most of this post lays out Jim Comey’s vindictive and selective prosecution challenge. It is very tidy, providing little we didn’t already know.

Aside from the confirmation that Lindsey Halligan was appointed under 28 USC 546, that’s generally true of Comey’s motion to dismiss because of Halligan’s unlawful appointment, as well.

But it feels different, because it’s a bid to win before the far right Supreme Court.

That starts with the memo that Sammy Alito wrote in 1986 — a memo conservative lawyer Ed Whelan has highlighted in his commentary against such an appointment. Back then, Sammy interpreted 28 USC 546 as prohibiting making serial Interim US Attorney Appointments, as Trump did in EDVA to install Lindsey the Insurance Lawyer.

Just three days after Congress enacted the 1986 law, the Office of Legal Counsel (OLC) within the DOJ issued a memorandum, authored by then-Deputy Assistant Attorney General Samuel Alito, interpreting the provision in precisely the same manner as Mr. Comey here. See Definition of Vacancy for the Purpose of Interim Appointment of United States Attorneys pursuant to 28 U.S.C. 546, as amended, Office of Legal Counsel (Nov. 13, 1986), https://perma.cc/SD5Q7CPH. Specifically, OLC concluded that while a “vacancy exists when the 120-day period expires under the amended section 546 and the President has either not made an appointment or the appointment has not been confirmed,” “it does not follow that the Attorney General may make another appointment pursuant to 28 U.S.C. 546(a) after the expiration of the 120-day period.” Id. at 3 (emphasis added)

There’s the dickish comment from Bill Essayli, whose own appointment is being challenged in Los Angeles (before a Hawaiian judge).

Nor is the government’s gambit limited to this case. In several cases throughout the country, the government has sought to end run Congress’s framework in Section 541 and 546 before being rebuffed by courts. See Giraud, 2025 WL 2416737, at *1, *8 (detailing the Executive Branch’s perpetuation of “Alina Habba’s appointment to act as the United States Attorney for the District of New Jersey through a novel series of legal and personnel moves” and concluding that she “was not lawfully acting as the United States Attorney in any capacity” 120 days after the Attorney General first invoked her power under Section 546(a)); United States v. Garcia, et al, No. 25-cr-227, 2025 WL 2784640, at *3 (D. Nev. Sept. 30, 2025) (“The Nevada judges did not have an opportunity to exercise [Section 546(d)] power because, on the 119th day of Ms. Chattah’s term, the government purported to switch her appointment to the [Federal Vacancies Reform Act] and its longer term of service.”). In fact, when one interim U.S. Attorney was asked whether his term was “up at the end of this month” given subsection (c)(2)’s 120-day limit, he responded that “we’ve got some tricks up our sleeves.”15 This Court should reject the government’s machinations here.

15 See The Glenn Beck Program: Bill Essayli, at 44:14 (Jul. 22, 2025), http://bit.ly/4nc6yck.

But the real high point comes in the challenge under the Appointments Clause, where a team including Michael Dreeben cites liberally from Trump v. US and US v. Trump to argue that one of Trump’s defense attorneys from his stolen documents case was unlawfully appointed under the very same logic Aileen Cannon used to throw out that case.

B. Ms. Halligan’s Appointment Also Violates The Appointments Clause

As explained above, the Appointments Clause allows Congress to “by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const., Art. II, § 2, cl. 2. The requirement that Congress participate in the appointment of inferior officers—either through Senate confirmation or through specifying an appointment procedure “by Law”—reflects the Framers’ concerns about the Executive Branch’s “manipulation of official appointments.” Freytag v. Comm’r, 501 U.S. 868, 883 (1991) (citations omitted).

Here, Congress vested the appointment of interim U.S. Attorneys “by Law” in a “Head of Department[]”—the Attorney General—as well as in “the Courts of Law”—district courts. In so doing, Congress established a finely tuned statutory scheme for such appointments. See supra at 8-9. Because the Attorney General appointed Ms. Halligan in violation of that scheme, Ms. Halligan’s appointment as an inferior officer is not authorized “by Law.” And the “head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto.” United States v. Perkins, 116 U.S. 483, 485 (1886). The Attorney General’s appointment of Ms. Halligan thus violates not only Section 546, but also the Appointments Clause. See Trump v. United States, 603 U.S. 593, 644-45 (2024) (Thomas, J., concurring) (citations omitted); United States v. Trump, 740 F. Supp. 3d 1245, 1263 (S.D. Fla. 2024).

[snip]

In light of these principles, the Supreme Court has invalidated judgments issued or reviewed by an improperly appointed adjudicator. In Ryder v. United States, 515 U.S. 177 (1995), for instance, the Supreme Court “reversed” the court-martial conviction of a defendant after he successfully challenged the appointment of the intermediate appellate judges who reviewed his case. Id. at 188. Likewise, in Lucia v. SEC, 585 U.S. 237 (2018), the Court set aside an agency adjudication “tainted with an appointments violation,” making clear that a decision of an improperly appointed official cannot stand. Id. at 251.

Similarly, in United States v. Trump, 740 F. Supp. 3d 1245 (S.D. Fla. 2024), the court applied these principles when dismissing an indictment on Appointments Clause grounds because of a defect in the appointment of the prosecutor who secured the charges. The court concluded that “[b]ecause Special Counsel Smith’s exercise of prosecutorial power has not been authorized by law,” there was “no way forward aside from dismissal of the Superseding Indictment.” Id. at 1302. Indeed, the government there did not even “propose an alternative course.” Id. The court reasoned that “[i]nvalidation follows directly from the government actor’s lack of authority to take the challenged action in the first place.” Id. at 1302-03.

That is, a team with a lawyer from Jack Smith’s team is citing Aileen Cannon’s disastrous opinion in Trump’s stolen documents case for the principle that for a lawyer to do what Lindsey the Insurance Lawyer did, she needs to be Senate approved.

Lindsey the Insurance Lawyer should know that (as should Deputy Attorney General Todd Blanche). After all, she was part of that “successful” defense team.

This is not to endorse this view. It is to say that if the sentiment behind Aileen Cannon’s dismissal of Trump’s stolen documents prosecution holds — if Clarence Thomas really wants to go there — than Halligan’s appointment, and all the work she did, must be thrown out, just as Jack Smith’s was.

The other vindictive and selective prosecution argument — that Donald Trump cannot simply appoint a US Attorney to take out his enemies is right on the facts but inapt on the legal precedents. But this one is designed to corner the right wingers on the Supreme Court.

And if that happens, this motion to dismiss goes further than the other — it puts Lindsey the Insurance Lawyer in an awkward spot. Because if she was not authorized by law to go before the grand jury, she violated grand jury secrecy rules.

Here, Ms. Halligan’s unlawful appointment tainted the structural integrity of the grand jury process. Absent Ms. Halligan’s unlawful title, she would not have been able to enter the grand jury room, let alone present and sign an indictment. Indeed, the Federal Rules of Criminal Procedure 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 the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings”—a principle that “is ‘as important for the protection of the innocent as for the pursuit of the guilty.’” United States v. Sells Eng’g, Inc., 463 U.S. 418, 424 (1983) (citations omitted). By limiting participation to government attorneys “authorized by law,” Rules 1 and 6 maintain the secrecy of the grand jury proceeding and reinforce that an unlawfully appointed attorney’s presentation to the grand jury underminesthe structure of that proceeding. The fundamental error here thus allows a presumption that Mr. Comey was prejudiced, “and any inquiry into harmless error would [require] unguided speculation.” Bank of Nova Scotia, 487 U.S. at 257.

Which is weird, because she was trying to lecture Anna Bower about relying on NYT reporting from witnesses … who are allowed to share their testimony before the grand jury.

This is the easier way to throw out this prosecution. It’s the same interpretation of the law that already got Alina Habba and Sigal Chattah disqualified from cases that won’t, however, sink the entire case.

But if that does happen, Lindsey may be in a bit more trouble for even pretending to be a government prosecutor.

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