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Judge Colleen Kollar-Kotelly Asks DOJ for Signs of Life

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Judge Colleen Kollar-Kotelly granted Dan Richman his request for a Temporary Restraining Order, preventing the government from snooping in his stuff, one that goes through Friday. And while I agree with Gerstein and Cheney (and Bower and Parloff) that it could have the effect of thwarting another indictment of Jim Comey — indeed, it may undercut an attempt to stonewall Richman — I find KK’s order interesting for other reasons.

Partly, it’s the way she’s demanding signs of life from DOJ.

Judge KK attempts to forestall a stonewall

As a reminder, Judge Cameron Currie threw out the indictment against Jim Comey on November 24, the Monday of Thanksgiving week. Two days later, the day before Thanksgiving, Richman cited that dismissal and the expired Statute of Limitations in his bid to get his data back. As far as I know, no one noticed it until Anna Bower pointed to it on Tuesday.

Notably, Richman attached the warrants used to obtain his records as sealed exhibits.

The same day Bower noted it (the day it was assigned), December 2, Judge KK issued an order, half of which dealt with Richman’s sealing request, which she provisionally granted. But she also told him that if he wants to keep the government out of his data, he needs to get a Temporary Restraining Order. Her order emphasized that that request must submit some sign of life from DOJ.

Finally, Petitioner Richman’s 1 Motion requests that this Court “issue a temporary restraining order enjoining the [G]overnment from using or relying on in any way” the materials at issue in his 1 Motion while this matter is pending. Consistent with Local Rule of Civil Procedure 65.1, it is ORDERED that Petitioner Richman shall file his application for a temporary restraining order by separate motion, accompanied by a certificate of counsel that either (1) states the Government has received actual notice of the application and “copies of all pleadings and papers filed in the action to date or to be presented to the Court” in connection with the application; or (2) identifies “the efforts made by the applicant to give such notice and furnish such copies.”

A Certificate of Service Richman filed later that day explains part of the reason KK made that order: For some reason, the motion was not docketed. So, Richman attorney Mark Hansen explained that he formally served Jocelyn Ballantine and DC USAO on December 1.

This Corrected Certificate of Service corrects the service date listed for the public redacted Motion for Return of Property and accompanying attachments, see ECF No. 1 at 3, and the sealed version of that Motion with accompanying attachments, see ECF No. 2, from November 26, 2025, to December 1, 2025. Although Petitioner filed those papers on November 26, 2025 and intended to serve them on that date, the filings were not docketed at that time. I promptly caused the filings to be served on counsel for respondent upon receiving notification from the Clerk’s Office, on December 1, 2025, that the filings had been accepted for submission and docketed.

But to comply with the other part of her order, Richman’s attorneys also included the emails they exchanged with Ballantine. And among the things those emails showed is that after agreeing to attorney Nick Lewin’s midafternoon December 3 request to respond by close of day on December 4,

Based on the government’s use of such property in connection with the Comey case (as described in Judge Fitzpatrick’s November 17, 2025 opinion), we are concerned that, absent a TRO, the government may continue to use the property in a manner that violates Professor Richman’s rights – particularly in light of recent news reports that the DOJ may seek a new indictment of Mr. Comey. However, if the government has no such intention and will agree to refrain from searching, using, or relying in any way upon Professor Richman’s property pending resolution of the Rule 41(g) motion, that would address our concerns and obviate the need for a TRO.

Please let us know the government’s position by COB tomorrow.

[snip]

Nick,

Thanks for your email. I will reach out to the appropriate people at DOJ with your request and will respond to you tomorrow by COB.

Jocelyn

Ballantine had not responded by 9PM on December 4.

Hi Jocelyn,

Did you get an answer? Please let us know.

Ballantine had a good excuse: she was busy prosecuting accused pipe bomber Brian Cole. Nevertheless, when she did respond at 9:12PM Thursday night, she said that her leadership — Jeanine Pirro — had already engaged with DOJ leadership (Bondi spent part of Thursday with Pirro bragging about the pipe bomber arrest), but she would not have an answer until “early next week.”

Thank you so much for the prompt. I met with my leadership today, and they have engaged Department of Justice leadership. I have also shared your pleadings and request with the prosecutors who handled the Comey prosecution out of EDVA.

I do not have an answer for you this evening, but I expect to have one early next week.

That’s what led Richman to file his motion for a TRO, maybe around 10PM Friday night. Judge KK responded just under a day later.

Her order specifically ruled that DOJ knows about Richman’s request.

Third, the Court finds that the Government has received actual notice of Petitioner Richman’s [9] Motion, ensuring that the Government is positioned to act promptly to seek any appropriate relief from this Order. Specifically, counsel for the Government may move to dissolve or modify this Order immediately upon entering an appearance, and the Court will resolve any such motion “as promptly as justice requires.” Fed. R. Civ. P. 65(b). Under the circumstances, the Court will allow and consider such a motion at any time upon contemporaneous notice to counsel for Petitioner Richman. See id. (providing that such a motion may be filed “[o]n 2 days’ notice to the party who obtained the order” or “on shorter notice set by the court”).

And barring the government requesting a different schedule, Judge KK’s order set up the following schedule:

  • Richman should “promptly” serve Judge KK’s order and everything filed in the docket to Pam Bondi (KK identifies Bondi by title specifically).
  • By noon on Monday, “the Attorney General of the United States or her designee” must confirm “the United States,” so everyone!, is in compliance with KK’s order not to “access … share, disseminate, or disclose” Richman’s data “to any person.”
  • By Tuesday at 9AM, DOJ must respond to both of Richman’s requests.
  • He must reply by 5PM that day.
  • The order will expire at 11:59PM on Friday night if Judge KK has not issued an order first.

If DOJ follows Judge KK’s order, then it will have the effect of:

  1. Slightly accelerating the response deadline for DOJ, which may have been due sometime on Tuesday anyway, while dramatically accelerating Richman’s reply, which is now due that same day.
  2. Flip the default status of Richman’s data, restricting DOJ from accessing it before Judge KK issues an order rather that allowing them to access it until any such order is in place.

In other words, the government can’t stall Richman’s effort in a bid to use the data in the interim. If DOJ follows the order, then it would prevent DOJ from using the data to get a new indictment before such time as Ballantine responds, “early next week.” Unless DOJ got an indictment on Friday with hopes of a big show arrest tomorrow morning, then KK would have thwarted any effort to stonewall Richman’s assertion of his rights.

If DOJ blows off the order, it’ll make it even easier for Comey to argue any indictment is malicious (unless, of course, he has to argue that to Aileen Cannon).

Did Judge KK smell a rat?

That’s the logistics of the order. The other parts of it are more interesting.

First, KK’s analysis on the TRO is cursory: just one paragraph stating that the government probably has violated Richman’s Fourth Amendment rights by searching his data without a warrant.

The Court concludes that Petitioner Richman is likely to succeed on the merits of his claim that the Government has violated his Fourth Amendment right against unreasonable searches and seizures by retaining a complete copy of all files on his personal computer (an “image” of the computer) and searching that image without a warrant. See United States v. Comey, No. 1:25-CR272-MSN-WEF, 2025 WL 3202693, at *4–7 (E.D. Va. Nov. 17, 2025). The Court further concludes that Petitioner Richman is also likely to succeed in showing that, because of those violations, he is entitled to the return of the image under Federal Rule of Criminal Procedure 41(g).

That’s on the third page of the four-page memo.

Before she gets there (and in addition to formally finding that DOJ has notice of Richman’s request), she focuses on the way DOJ is playing dumb. She notes she has spoken to unnamed people from DC USAO, who were helpful on administrative matters, thank you very much.

First, although the Court has been in communication with attorneys from the U.S. Attorney’s Office for the District of Columbia, 1 the U.S. Attorney’s Office for the District of Columbia has not yet entered an appearance to make representations on behalf of the Government, and counsel for the Government has not yet been identified. See Pet’r’s Ex. A, Dkt. No. 9-2.

1 These attorneys have helpfully facilitated communication on administrative matters. The Court appreciates counsel’s prompt assistance on these matters.

But no one, including Jocelyn Ballantine, wants to put their name on this docket.

And that’s a problem, Judge KK notes, because until someone files notice of appearance, there’s no formal way to start figuring out who has the data.

Second, the Government has not yet indicated who has custody of the material at issue, and neither the Petitioner nor the Court can determine the identity of the custodian until the Government appears in this case. Given that the custody and control of this material is the central issue in this matter, uncertainty about its whereabouts weighs in favor of acting promptly to preserve the status quo.

Maybe it’s something those helpful DC USAO personnel told her. Maybe it’s the way Ballantine deftly shared Richman’s motion with the Loaner AUSAs at EDVA, but not the DOJ leadership with whom Pirro had consulted by late day Thursday.

It’s like Colleen Kollar-Kotelly suspects DOJ is hiding the ball, and that’s why she ordered Richman to go right to the top with his request, to ensure Pam Bondi can’t pretend she’s ignorant of his request.

The perma-sealed Bill Barr dockets

There’s something else sketchy going on here.

As I noted, Richman attached the warrants used to seize his stuff. They’re still sealed and Judge KK has provisionally permitted them to remain that way.

But why are they still sealed?

Back on November 5, Magistrate Judge William Fitzpatrick ordered the Loaner AUSAs to get them unsealed or, if not, then to file a motion justifying the seal in DC.

ORDERED that the Government shall, on or before November 10, 2025, move in the issuing district to unseal the four 2019 and 2020 search warrants referenced in the Government’s Reply to Defendant’s Response to the Government’s Motion for Implementation of Filter Protocol (ECF 132), together with all attendant documents, or, in the alternative, file a motion in the issuing district setting forth good cause as to why the subject search warrants and all attendant documents should remain under seal, in whole or in part;

In that same order, he ordered that there’d be a discussion about unsealing all the references to the warrants in the Comey docket on November 21, which was before Judge Currie dismissed the indictment on November 24. The government was also going to have to defend keeping the filing explaining the notice given to Comey — and submitted as an exhibit to his first response to the effort to get a taint team — sealed that same day.

ORDERED that, if necessary, the Court shall hold a hearing on the pending motions to seal (ECFs 56, 72, 109, and 133) on November 21, 2025, at 10:00 a.m. in Courtroom 500, and the materials subject to those motions shall remain UNDER SEAL until further order of the Court; and it is further ORDERED that, to the extent the Government seeks to seal Exhibit A to Defendant’s Response to the Government’s Motion for Expedited Ruling (ECF No. 55-1), the Government shall file a supporting brief in accordance with Local Criminal Rule 49 on or before November 12, 2025; Defendant may file a response on or before November 19, 2025; and, if necessary, the Court shall hold a hearing on the Government’s sealing request on November 21, 2025, at 10:00 a.m. in Courtroom 500;

Best as I can tell, that never happened. For example, there are no gaps in the Comey docket hiding a sealed discussion about these sealed warrants.

And that’s interesting because when Fitzpatrick asked about all this back on November 5 — this is the hearing that led to the order to unseal the warrants — Rebekah Donaleski revealed that they asked Loaner AUSA Tyler Lemons about the warrants twice at that point, but had gotten no response.

Before we begin, what I’d like to do is — before we address the underlying issues, the government’s motion for a filter protocol, the defendant’s position, we have four outstanding sealing motions, and I do think those sealing motions will touch, at least in some way, on this motion; if not, motions that you-all are going to argue in the future. So what I’d like to do is see if we can nail down what the parties’ positions are and see if we can kind of resolve some of those sealing issues now, if possible.

As I understand it, there are four sealing motions that are outstanding. The defense has filed three; the government has filed one. All these sealing motions deal with either warrants that were issued in a sister district or one document that the government has provided to the defense in discovery.

MS. DONALESKI: Thank you, Your Honor. With respect to the one document provided in discovery, that’s our position, we have no objection. With respect to the underlying warrants which we attached to our motions, my understanding from Mr. Lemons is that he has moved to unseal those. We don’t know where — he hasn’t moved to unseal them — when. We’ve asked him twice for that information, and he hasn’t provided it. The defense’s view is that we should be entitled to proposed reasonable redactions for PII of those warrant affidavits and warrant materials. We have asked for an opportunity to do that and have not heard from the government. So our position is, the information in our motions, in the motion papers themselves, we have no objection to that being under seal — to that being publicly filed; but with respect to the warrants, which my understanding is those remain under seal by the District of D.C. court, we would ask that we be permitted an opportunity to propose redactions with the government.

[snip]

But with respect to the information that we’ve described in our motion papers, specifically referring to the offenses at issue in the Artic Haze warrants, the dates that the warrants authorize to search, the defense believes that those should be discussed publicly and those can be discussed publicly.

THE COURT: What about the affidavits in support of the warrants?

MS. DONALESKI: Those remain under seal. I don’t expect that we’ll need to get into what is in those affidavits in this hearing today, but if the government or the Court feels differently, we’d welcome that discussion.

And when Fitzpatrick asked Lemons about the warrants, the Loaner AUSA got a bit squirmy. Lemons had asked the AUSA to unseal the warrants. He had not filed a motion to unseal them, as if someone — maybe the AUSA in question, who may be Jocelyn Ballantine — advised him that was not a good idea.

THE COURT: Mr. Lemons, what’s the status of that?

MR. LEMONS: Thank you, Your Honor. Your Honor, we have made a request to the issuing district as to those search warrants, for them to be unsealed. My understanding, last speaking with an AUSA in that district, is that motion has not been filed at this time. They are preparing to provide notice to other potentially interested parties, per their practice and the rules they have to abide by in that district. So we requested it, and our understanding is at this time that the warrants all remain completely under seal. That is the only reason why the government designated these search warrants as protected material and filed them under seal and understands why the defense filed them under seal. If it was in my power and ability here today, those search warrants would be totally unsealed. [my emphasis]

“Preparing to provide notice to other potentially interested parties”? Who else would need notice? Richman and Comey were the ones suspected of leaking!

It has been a month but these dockets remain sealed.

One possible explanation for that is that the Loaner AUSAs (or perhaps Ballantine) filed a motion in DC on November 10 that is under seal, one that should not be sealed for Judge KK. So perhaps everyone is trying to hide the fact that after being ordered by Fitzpatrick not to access this data, Kash Patel just dealt it to someone else (possibly Jason Reding Quiñones). That might explain why Judge KK ordered the government they can only contest her order after giving “contemporaneous notice to counsel for Petitioner Richman:” because (hypothetically), having been ordered by MJ Fitzpatrick to stay out of Richman’s data, they instead dove deeper into it without telling him.

Or maybe the squirminess is about hiding how the underlying warrants were managed … by Jocelyn Ballantine.

Revealing those warrants, after all, should not thwart the effort to keep snuffling about Richman’s data, except insofar as it would raise questions not directly addressed in Judge KK’s order. Just as one example, even though Richman in his initial motion and TRO request relied heavily on Magistrate Judge William Fitzpatrick’s opinion effectively describing rampant Fourth Amendment violations, he does not mention that when the FBI seized his iCloud account in 2020, they took content through August 13, 2019, more than two years after the date of the warrant (basically, through the date of the Comey Memo IG Report release).

According to an April 29, 2020 letter from Mr. Richman’s then-attorney to the government–produced to the Court ex parte by the defense–the Department of Justice informed Mr. Richman that the data it obtained from his iCloud account extended to August 13, 2019, well outside the scope of the warrant and well past the date on which Mr. Richman was retained as Mr. Comey’s attorney. ECF 181-6 at 20. The same letter further states that the Department of Justice informed Mr. Richman that it had seized data from Mr. Richman’s hard drive that extended to June 10, 2017–again well into the period during which Mr. Richman represented Mr. Comey–despite the warrant (19-sw-182) imposing a temporal limit of April 30, 2017. Id.

Did Ballantine — in whom Pirro has invested the trust to limit the blowback of the pipe bomb prosecution — allow the FBI to obtain data outside the scope of a warrant? Are there secret John Durham warrants someone is hiding?

It’s not clear who all this squirminess is designed to protect. But I feel like, whether or not Judge KK’s order halts DOJ efforts to dive into this unlawfully collected data, it may lead to some interesting disclosures about why everyone is so squirmy.

Update: Right wing propagandist (and daughter of a former whack job FBI agent) Mary Margaret Olohan gives the game away. One of her DOJ sources says this won’t be a setback … which sort of confirms that DOJ intends to continue to violate Richman’s Fourth Amendment.

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Blind Man’s Bluff in the Jim Comey Docket

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Threshold issues

The very last thing Judge Michael Nachmanoff asked Michael Dreeben in Wednesday’s hearing on Jim Comey’s bid to throw out his indictment for vindictive prosecution, before turning to prosecutors’ argument, was whether he should wait and address all of Comey’s challenges at once or deal with vindictive prosecution on its own.

THE COURT: All right. Thank you. But before you sit down, let me just ask you, do you think that the other pending motions, including the issue of literal truth and ambiguity and the other matters that are yet to be litigated, are so wrapped up in vindictive prosecution that the Court should deal with them all at one time, or do you think that the Court can and should deal with vindictive prosecution separately?

MR. DREEBEN: I think vindictive prosecution, like our motion based on the appointment of the U.S. attorney, are threshold matters that the Court should resolve as a threshold. Mr. Comey would like to see both of those motions resolved because they both go to the very heart of whether a prosecution in this case is permissible, one by virtue of a challenge to the official who brought it, the other by virtue of whether it complies with the Constitution to bring a prosecution at all.

Our other motions are very important, and we have a series of them that challenge other aspects of the prosecution. As I’m sure the Court is well aware, there are issues relating to the conduct of the prosecutor in the grand jury. But this one and the appointments issue stand at the threshold. They’re the gateway to all further motions, and those should be resolved at the outset of the case, in our view.

Dreeben, calling vindictive prosecution and disqualification (which Judge Cameron Currie had heard the week before) “threshold” matters, said they should be decided at the outset.

That may explain Nachmanoff’s decision at the very end of the hearing to deny Jessica Carmichael’s request to move up the next motions hearing — the one that would address the other issues Nachmanoff asked Dreeben about — from December 9, what would be almost three weeks (including the Thanksgiving holiday) from that day, to the prior week.

There’s also a motion to move up the next oral argument, which is set on December 9th. I commend everyone’s enthusiasm for trying to move this even faster, but the Court is reluctant to do that. I believe that it was Ms. Carmichael that had a conflict, and I will permit counsel to appear without Ms. Carmichael, who’s local counsel, so that she doesn’t have that issue, but I will keep the current schedule that we have.

If Nachmanoff does treat the vindictive prosecution challenge as a threshold issue, then he may hope to rule before holding another hearing. If Nachmanoff were to rule for Comey on vindictive prosecution (or Currie were to disqualify Lindsey Halligan, as is likely), the December hearing might be delayed anyway during an appeal, possibly all the way to SCOTUS.

It’s worth noting that Comey’s appellate lawyers — Ephraim McDowell in the disqualification hearing and Dreeben in the vindictive prosecution one — argued these District level motions hearings. As I noted when they were added, Comey walked into these challenges preparing to fight this all the way to SCOTUS.

The Comey prosecution may go away, pending appeal, in less than 20 days, via one of at least two ways. Indeed, given Judge Currie’s promise to rule before Thanksgiving, it could go away in the next week (again, pending appeal).

I lay that out as a way to understand some other things that have happened since Nachmanoff’s hearing.

The drama

But first, the drama, which started shortly after Dreeben answered that question about threshold issues.

Loaner AUSA Tyler Lemons had barely started his argument when Nachmanoff questioned the prosecutor’s claim that the grand jury, “returned a true bill.”

THE COURT: Well, we’ll have some questions about that —

MR. LEMONS: That’s correct, Your Honor.

THE COURT: — but I’ll let you get through your argument.

Shortly thereafter, Nachmanoff challenged Lemons’ claim that Comey was relying on, “newspaper articles, anonymous sources, innuendo, [and] conjecture.”

THE COURT: Well, let me stop you there. With regard to the words of the president, whether it’s the post from September 20th or his answers to questions from reporters, you’re not suggesting that those aren’t things the president has said, are you?

Immediately before the drama of the declination memo, Nachmanoff bristled at Lemons’ insinuation that Erik Siebert, whom — the EDVA judge noted — had been appointed as US Attorney by the judges of EDVA, was involved in “machinations.”

MR. LEMONS: Absolutely, Your Honor. What I’m referring to is the newspaper reports that are relying on anonymous sources as to the machinations of former U.S. Attorney Siebert or to other decisions that essentially are not directly quoting the president or someone else.

THE COURT: Well, let me stop you there.

MR. LEMONS: Yes, sir.

THE COURT: I’m not sure what machinations you’re referring to. Are you referring to the fact that Mr. Siebert was the interim U.S. attorney and then appointed by the Court, and then either resigned on September 19th or was fired by the president on September 19th?

MR. LEMONS: Yes, Your Honor. And I guess more specifically referring to any sort of — across, it sounds like multiple cases, not just this case — any reluctance or willingness to pursue cases in this Court.

That’s when Nachmanoff spent several minutes slowly cornering Lemons into admitting, in spite of direction from Todd Blanche’s office to avoid doing so, that he did not just know of a declination memo, but had read it.

THE COURT: Well, was there a declination memo?

“Was there a declination memo?” was question one. Questions ten and eleven in the colloquy, which also included Nachmanoff reminding Lemons he was “counsel of record in this case” and then getting him to explain that Todd Blanche’s office had instructed him to dodge these questions, went this way:

THE COURT: And had one been prepared?

MR. LEMONS: My understanding is that a draft prosecution memo had been prepared.

THE COURT: All right. And did you review that?

MR. LEMONS: I — yes, Your Honor, I did.

That still wasn’t the most dramatic part of the hearing, of course.

Lemons finished his argument, and then Nachmanoff returned to that question, the grand jury presentment. From the start, he mentioned it would be useful to hear from Lindsey, but he did allow Lemons to explain what he thought had happened, first.

THE COURT: Well, I have a couple more questions before you sit down.

MR. LEMONS: Okay.

THE COURT: At the beginning of your remarks, you said that the grand jury had returned an indictment and there’s a presumption of regularity with what happened, but as we know from other litigation in this case, there have been some questions and some attempts to resolve those issues, and Ms. Halligan submitted a declaration on Friday that explained, in part, in response to the question from Judge Currie about what happened after the grand jury began to deliberate, and then what went on —

MR. LEMONS: Yes, Your Honor.

THE COURT: — after that. And I’ll ask you these questions, but it may be more direct to ask Ms. Halligan directly.

In spite of noting that it might be easier if Lindsey explained all this, Nachmanoff let Lemons explain what he understood had happened at length, including that the EDVA grand jury coordinator had had direct communications with the foreperson.

The judge asked Lemons the question about whether the full grand jury had voted on what he referred to as the second indictment three times, which is when he finally invited Lindsey to speak, as counsel of record. She barely said good morning before she interrupted the judge.

THE COURT: And so that the record is clear, when the grand jury return was taken, only the foreperson was in the courtroom, correct, the rest of the grand jurors were not present; is that right?

MR. LEMONS: Can I have a moment, Your Honor?

THE COURT: You can. Ms. Halligan, you can come to the podium. You’re counsel of record. You can address the Court. It might be easier. Good morning.

MS. HALLIGAN: Good morning.

THE COURT: So am I correct that, as is the usual —

MS. HALLIGAN: No, Your Honor.

THE COURT: — practice, that the grand jurors were not present, just the foreperson?

MS. HALLIGAN: The foreperson and another grand juror was also present, and Judge Vaala corrected the record in open court, and the foreperson said in open court, We only no true billed Count One, we want to true bill Count Two and Three, and the foreperson signed that indictment.

THE COURT: I’m familiar with the transcript.

MS. HALLIGAN: Okay.

THE COURT: But I just wanted to make sure that the entire grand jury never had the opportunity to see the second indictment. You may sit down. Thank you.

The government, of course, has now refuted this account, thinking it helps them to claim that Halligan (and Lemons) stood before the judge and misinformed him, all because a confused foreperson said that the entire grand jury had voted for the two-count indictment, which served primarily to corrode any presumption of regularity DOJ is afforded.

From the start (and so when he asked whether he should wait on the other challenges), Nachmanoff had at least those two questions, the grand jury and the declination memo, in mind, and also, probably, how Lindsey could have assessed the case in the three days before indicting.

THE COURT: Well, that’s why I was asking you the questions about the declination memo and the prosecution memo, because she was appointed on September 22nd, and she went into the grand jury on the 25th, and I believe what you’re saying is that she made an independent evaluation of the case and concluded to move forward with it in that time period, in those couple of days. And so my question is, what independent evaluation could she have done in that time period?

MR. LEMONS: Your Honor, I think that — that discussion is inevitably one that we would have if you order expanded discovery.

Michael Dreeben, in rebuttal, asserted that the irregularity with the indictment was obtained is yet another cause to dismiss the indictment, and asserted that Nachmanoff didn’t need to see what the declination memo said to dismiss it.

Nachmanoff closed the hearing not just by denying Carmichael’s request to advance the next motions hearing, but by ordering both parties to brief a case.

I have some housekeeping matters to address. I would like, especially in light of our argument today, both parties to address the case of Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969), and it addresses this issue regarding the foreperson signing an indictment. And I know you have your objections due at 5:00 p.m. today, so I wanted to make sure the government was aware of the Court’s interest in addressing that case, and, of course, the defense can address it in turn when they file their response.

The oddities of a three-judge docket

Now, I’m going through this exercise not to share the drama from the transcript, much of which got covered in real time, but because I want to understand how the hearing on Wednesday — particularly Lindsey’s confession about the grand jury — jumbled what would have happened and will happen in the brief window before December 9, when some or all of this might be launched on its way to appeal, possibly all the way to SCOTUS.

Here’s what happened and will happen in the week since the hearing; I’ve color-coded response chains:

November 19: Vindictive prosecution hearing before Michael Nachmanoff; Nachmanoff denies motions schedule change, orders CIPA schedule, orders briefing on Gaither

November 19: Government objection to Fitzpatrick order giving Comey grand jury transcripts, writing up interactions between grand jury coordinator and grand jury foreperson and seemingly confirming that court reporter left after rest of grand jury left

November 19: Government brief on Gaither (responding to Nachmanoff’s order)

November 19: Insanely stupid Lindsey Halligan interview with NYPost misrepresenting record and attacking Judge Nachmanoff

November 20: Comey Reply on fundamental ambiguity

November 20: Comey Reply on Bill of Particulars (including exhibits on discovery, kicking off graymail)

November 20: Government notice “correcting” record, including return transcript

Later November 20: Comey Reply on his motion for grand jury materials

November 21: Consent motion to set CIPA hearing on December 9 instead of filing CIPA 5

November 21: Comey Response to government objection to Fitzpatrick order

November 21: Motion to dismiss because there is no indictment

November 21: Amended motion to dismiss because there is no indictment

November 24: Comey requested response date on MTD no indictment

November 26: Expected Cameron Currie ruling on disqualification

November 26: Comey motion to suppress due

Start from the end: with a motion to dismiss because there is no indictment, which Comey almost immediately amended. As the citations page makes clear, this is substantially Comey’s response to Nachmanoff’s request for briefing on Gaither.

As Comey explains in a footnote, rather than just responding to Gaither, he’s using belated disclosures — from the discovery about the Fourth Amendment and attorney-client violations, from William Fitzpatrick’s opinion on the grand jury transcript, and regarding the failure to present the second indictment — to submit a separate motion to dismiss to be considered along with the other ones.

Mr. Comey respectfully submits that the Court can and should consider this motion along with Mr. Comey’s other dispositive motions. ECF Nos. 59 [vindictive], 60 [disqualification], 105 [fundamental ambiguity]. Those motions are fully briefed, and the government has filed its notice concerning Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969). See ECF No. 201. The defense requests that the Court direct the government to file its response to this Motion—if any—by November 24, 2025.

He is effectively attempting to squish this motion to dismiss into the window when Nachmanoff will be deciding the vindictive prosecution motion and Judge Cameron Currie will be deciding the disqualification motion, with the unrealistic request that the government have to respond over the weekend to also squish it into that same window.

Dreeben did say he was going to file another motion to dismiss and Nachmanoff did not object, but he’s trying to squish that motion into this window when the judges are deliberating.

The new motion to dismiss overlaps in significant part with two other filings submitted since the hearing: Comey’s reply on his request to get grand jury transcripts, and Comey’s response to the government’s objection to William Fitzpatrick’s order that he get those transcripts.

In his reply, Comey explains how all of these documents fit together.

1 The absence of a valid charging instrument will be the basis of a forthcoming motion to dismiss [that is, the Gaithner briefing as motion to dismiss].

2 As the Court is aware, Mr. Comey will file his response to the government’s appeal of Magistrate Judge Fitzpatrick’s order for the government to disclose the grand jury proceedings on Friday, November 21, 2025. This reply brief responds to the government’s arguments in opposition to the motion (ECF No. 184) to disclose the grand jury proceedings and highlights additional irregularities that have surfaced further warranting disclosure. Mr. Comey’s response to the government’s appeal of Magistrate Judge Fitzpatrick’s order will explain why Judge Fitzpatrick’s ruling is well supported by fact and law warranting affirmance and address the government’s opposition to that ruling. These litigation streams present two related, but separate, avenues to order the government to produce the grand jury proceedings.

And the seeming cause for amendment to the motion to dismiss — a replacement of one claim about how Lindsey Halligan integrated privileged material in the grand jury…

Ms. Halligan referred to those materials in her presentation to the grand jury and elicited extensive testimony about privileged materials from Agent-3. ECF No. 192 at 14.

With another…

In turn, Ms. Halligan extensively questioned Agent-3 about communications between Mr. Comey and Mr. Richman during Agent-3’s testimony before the grand jury. ECF No. 192 at 14.

… reveals one of the things going on. In all three documents, Comey aggressively accuses the government of purposely seeking out privileged material in advance of the presentment.

Agents knowingly reviewed and printed out dozens of pages of privileged communications between Mr. Comey and his lawyers and appear to have presented at least certain of those privileged communications to the grand jury in this matter.

Thus the delicate balance Comey tried to correct with the amendment: they’re pretty sure Miles Starr did not just present tainted testimony, but that Lindsey cued him with tainted questions, but that overstates what they can say without seeing the grand jury transcript.

Both those sentences must rely on this passage of Fitzpatrick’s opinion (they cite the unredacted version rather than this one; the redacted discussion starts on the next page).

The government’s position is that the grand jury materials “confirm the baselessness of the defendant’s claim that privileged information may have been shared with the grand jury.” ECF 172. While it is true that the undersigned did not immediately recognize any overtly privileged communications, it is equally true that the materials seized from the Richman Warrants were the cornerstone of the government’s grand jury presentation. The government substantially relied on statements involving Mr. Comey and Mr. Richman in support of its proposed indictment. Agent3 referred to these statements in response to multiple questions from the prosecutor and from grand jurors and did so shortly after being given a limited overview of privileged communications between the same parties. The government’s position that privileged materials were not directly shared with the grand jurors ignores the equally unacceptable prospect that privileged materials [page break] were used to shape the government’s presentation and therefore improperly inform the grand juror’s deliberations.

Both sides are working at a disadvantage in this argument. The government complained that it couldn’t see what Comey shared in ex parte submission to Fitzpatrick (and, generally, complained that it hadn’t been able to get its filter protocol).

2 Although the docket indicates the government provided the materials for in camera review, Dkt. No. 179, the docket does not reflect that defendant submitted ex parte information to the Magistrate Judge. However, the magistrate judge referenced the defendant’s ex parte notice in its opinion. See Dkt. 191 at 7.

In his response, Comey described some of what was included in that.

Pursuant to Judge Fitzpatrick’s order during the hearing, the defense filed an ex parte sealed submission to guide Judge Fitzpatrick’s review, which was supplemented with evidence that the government had produced to the defendant, such as the privileged communications the government’s agents printed out and used in September 2025 after their warrantless search of the materials seized from Daniel Richman.

[snip]

Mr. Comey plainly had an expectation of privacy in his communications with his lawyer, which was clear from the face of the communications the government agents reviewed and printed in September 2025, ECF No. 172-2 at 2,2 as set forth in the ex parte submission the defense submitted to Judge Fitzpatrick.

But unlike the government, Comey doesn’t know precisely what was said about the Richman texts to the grand jury, in particular whether Halligan’s promise of more evidence — a reference the government did no more than to confirm in its response by saying, “the government anticipated presenting additional evidence were the case to proceed to trial” — pertains specifically to the Comey side of the Richman texts.

Plus, both seem to be trying to hold their fire. Perhaps Comey is waiting on the motion to suppress — which may be held in abeyance if Judge Currie rules for him. Surely, he is guarding his privilege claim.

And, after admonishments from Fitzpatrick, the Loaner AUSAs dropped their reliance on the Richman texts in their Bill of Particulars response, so they’re probably trying to avoid knowing Fourth Amendment violations.

So neither will say what I keep saying: On the morning before the grand jury presentment, Spenser Warren provided others with a two page printout of Richman texts, all of which preceded the moment when the FBI knew Comey had retained Richman. But someone went back into that unscoped material they knew to include privileged texts and printed out at least eight pages of texts, going well beyond the time Comey had retained Richman.

And whatever the reason for the reticence on both sides, unless you are misrepresenting the questions at issue (and remember, there is no transcript of the exchange Comey had with Ted Cruz included among the 14 exhibits that appear to have been presented to the grand jury), there is no sound reason to present any of these texts. None could be proof that Comey had authorized Richman to share this information while at FBI, because Richman had left months earlier. None could be proof that Comey lied to Chuck Grassley on May 3, 2017 about serving as a source for stories on the Russian investigation (which Grassley called the Trump investigation), because they all postdated Grassley’s question. None could be proof that Comey intended to obscure all this in September 2020, because he had already told Susan Collins about all of this on June 8, 2017. Contrary to what Loaner AUSAs claimed in their urgent bill for a filter protocol (authored by James Hayes), nothing in the public record supports a claim that Comey and Richman (and Patrick Fitzgerald) were conspiring to leak classified information.

The only crime Comey committed was exposing Donald Trump’s corruption, which led to a Special Counsel investigation that showed abundant evidence Trump obstructed the investigation into his ties with Russia.

But in his effort to mislead a grand jury to believe that was a crime, Miles Starr may have knowingly and unlawfully surveilled attorney-client communications without a warrant much less a filter protocol.

As of now, Nachmanoff has not ruled on either parallel request to grant Comey grand jury access (he said he would rule on the filings, without a hearing), though a footnote to the motion to dismiss, “reserves the right to supplement this Motion with further facts and argument if and when the grand jury materials are disclosed to the defense.” So unless and until he does, the record will remain what it is, with vague gestures from both sides about a conflict at the heart of this case, potentially excluded from the record if this thing gets appealed.

When caught lying, troll

Meanwhile, of course, Lindsey Halligan is already resorting to the tactics she learned from her boss, falsely misrepresenting a question Nachmanoff posed about Dreeben’s belief, laid out in Comey’s reply to prosecutors’ arguments about imputation (which I laid out here)…

MR. DREEBEN: That is certainly correct, and that is an additional obstacle that supported the court’s factual conclusion that imputation was not appropriate on the facts of the case. But we, of course, have a very different situation. In the hierarchy, the president stands at the top, and he has declared himself to be the chief law enforcement officer of the United States. He has vested in him executive power, which includes supervision of the Department of Justice. The U.S. attorneys help him carry out his responsibility to see that the laws are faithfully executed, and as we argued in the brief, that is not just a theoretical constitutional structural argument; it is actually an argument that applies to the facts of this case because the president has taken on the responsibility and the authority to direct the Justice Department to take actions in the investigatory and prosecutorial realm that he thinks should be taken, and he has, in effect, substituted himself for the U.S. attorney as the decision-maker, and the facts of this case reveal that that’s why his vindictive motive is imputed to the prosecution. No, he didn’t go into the grand jury, but exercising the authority that’s vested in him, he brought about the prosecution through the chain of causation that we described earlier.

THE COURT: So your view is that Ms. Halligan is a stalking horse or a puppet, for want of a better word, doing the president’s bidding?

MR. DREEBEN: Well, I don’t want to use language about Ms. Halligan that suggests anything other than she did what she was told to do. The president of the United States has the authority to direct prosecutions. She worked in the White House. She was surely aware of the president’s directive. She didn’t have prosecutorial experience, but she took on the job to come to the U.S. Attorney’s Office and carry out the president’s directive, and this was a directive to the attorney general. I think we know that the attorney general is highly responsive to the president’s directives. She doesn’t say, Excuse me, Mr. President, this is my job.

The makebelieve US Attorney for EDVA instead falsely claimed this was a direct expression of Nachmanoff’s own opinion.

Interim US Attorney Lindsey Halligan suggested Wednesday that the Biden-appointed judge overseeing the criminal case against former FBI Director James Comey violated judicial conduct rules by asking if she was a “puppet” of President Trump.

District Judge Michael Nachmanoff asked Comey’s defense lawyer if he thought Halligan, the prosecutor who brought the indictment against the former FBI boss, was acting as a “puppet” or “stalking horse” of the commander in chief, during a hearing in an Alexandria, Va., courtroom.

“Personal attacks — like Judge Nachmanoff referring to me as a ‘puppet’ — don’t change the facts or the law,” Halligan exclusively told The Post.

“The Judicial Canons require judges to be ‘patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity’ … and to ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,’” she continued.

Lindsey’s attack in the NYP was similar to the one prosecutors made in their response to Fitzpatrick’s order (which Comey addressed in response).

Federal courts have an affirmative obligation to ensure that judicial findings accurately reflect the evidence. Canon 2(A) of the Code of Conduct for United States Judges requires every judge to “act at all times in a manner that promotes public confidence in the integrity and mpartiality of the judiciary” and to avoid orders that “misstate or distort the record.” Canon 3(A)(4) requires courts to ensure that factual determinations are based on the actual record, not assumptions or misrepresentations. Measured against these obligations and the rule of law, the magistrate’s reading of the transcript cannot stand.

They’re trolling.

They’re doing precisely what Trump always does when caught in a crime: he trolls and attacks rule of law.

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Lindsey the Insurance Lawyer Confesses There Is No Indictment

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As I have suspected since at least Friday, there is no Jim Comey indictment.

That’s because, rather than re-presenting the case after the jury no-billed on one count, Lindsey Halligan never re-presented the remaining two counts.

Here’s CNN. (See also Politico, ABC, and WaPo.)

In a shocking back and forth, prosecutors said that instead of presenting a new indictment to the grand jury after it declined to approve one of the counts, Halligan simply brought an altered version to the magistrate’s courtroom for the grand jury’s foreperson to sign.

“The new indictment wasn’t a new indictment,” Lemons said, attempting to justify that it was only reviewed by the foreperson.

Judge Michael Nachmanoff quickly called Halligan, who was the only prosecutor who presented the case to the grand jury, to the lectern, asking her to confirm that the entire grand jury was never presented the altered indictment.

The judge started, “Am I correct -”

“No, you’re not,” Halligan interrupted. She said that there was one additional grand juror in the magistrate’s courtroom and quoted her back-and-forth with that judge.

“I’m familiar with the transcript,” Nachmanoff said. He then told her to sit down.

Apparently Michael Dreeben declared, correctly, that therefore there is probably no indictment, period, because the full grand jury did not vote to support it.

The problem goes beyond just the basics of how a grand jury works. As I noted here, Lindsey’s Loaner AUSAs already confessed that they want to rely on the no-billed count to support their obstruction case.

[A]s provided in discovery and via the indictment, the government intends to seek the admission of evidence at trial on this count regarding the defendant’s statements to senators during the September 30, 2020, committee hearing. For instance, the defendant’s statements to Senators Grassley and Cruz regarding his use of Richman as an anonymous source concerning the Clinton email investigation and his statements to Senators Graham and Hawley regarding his alleged lack of memory concerning the so-called Clinton plan to “tie Trump” to Russia.

And it’s worse than the poor Loaner AUSAs seem to realize.

The September 30, 2020 hearing had a specific scope, which could fairly be taken as the scope of the investigation the Senate was pursuing at the time. The Clinton email investigation was not included in that scope.

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.

Without the no-billed count, nothing charged against Comey would be included in the scope of the hearing.

Her fuck-ups continue to snowball!

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Lindsey’s Loaner AUSAs Can’t Decide What the Clinton Investigation Is

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Remember how I said that the hopeless confusion Tyler Lemons exhibited in his response to Comey’s motion to dismiss for vindictive and selective prosecution showed why Comey was right to request a Bill of Particulars? In that filing, Lemons played games with transcripts, confused what was a Clinton investigation, what a Russian investigation not yet focused on Trump, and what was, instead, inaccurate propaganda from John Solomon?

Well, if anything, the problem has gotten worse.

Loaner AUSA Gabriel Diaz submitted the following response memos today:

After Lemons spent 15 pages of last week’s vindictive prosecution response — laying out (A) November 2016 communications between Jim Comey and Dan Richman leading to this story, (B) February 2017 communications with Chuck Rosenberg leading to this story, and (C) May 2017 communications between Dan Richman and Mike Schmidt leading to this story, as well as presenting (D) a wildly misleading story about the “Clinton Plan,” the Gabriel[s] spent five pages throwing half that out.

(B) and (C) are gone, perhaps sacrificed to the reality that Dan Richman had left the FBI before those, meaning they didn’t fit the terms of Ted Cruz’ question. Or maybe, in the case of (C), to the possibility their attorney-client breach will blow up in their face.

After Lemons’ Response to vindictive and selection bitched twice that publicly available transcripts Comey had used included minor inaccuracies,

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.

[snip]

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.

The Response on Bill of Particulars noted that their own did too.

2 The Government’s response in opposition to the Defendant’s motion to dismiss erroneously omitted the word “the” before the words “Clinton investigation” in quoting Senator Cruz. See Dkt. 138 at 11.

Yet, if either the Response on Bill of Particulars or the Response to literal truth addresses this complaint from Comey, I don’t see it.

As detailed in Mr. Comey’s Motion to Dismiss the Indictment Based on Vindictive and Selective Prosecution, as well as the Motion to Dismiss the Indictment Based on Fundamental Ambiguity and Literal Truth, the text of Count One both misstates the testimony Mr. Comey actually gave and misquotes the question.

We’re two months into this thing and no one has gotten around to addressing the fact that the language in the indictment misrepresents what happened.

Remember: While Diaz said Lindsey the Insurance Lawyer showed 14 exhibits to the grand jury, none of those lay out the Cruz and Comey exchange, so we can’t entirely rule out Lindsey the Insurance Lawyer just … making up what was said, as she assuredly did in the indictment.

Then, having included a full transcript of the Cruz-Comey exchange in the filing, Lemons (or is it Shedd?) dismissed the way Cruz misspoke his lines — substituting “administration” for “investigation” in his question — this way.

The “other ambiguities” do no more to obscure the meaning of Senator Cruz’s questions. See Def. Mem., Dkt. 105 at 14. The defendant flags Senator Cruz’s mistaken use of “Clinton administration” instead of “Clinton investigation.” See Oversight Hearing Transcript at 11. Yet Senator Cruz had correctly referred to the “Clinton investigation” two sentences prior and he was recounting the defendant’s own testimony, so the mistake would have been obvious to the defendant.

But then it largely dodges the way Cruz framed his question to focus on Andrew McCabe.

Under the narrow interpretation, Senator Cruz asked the defendant only whether he authorized McCabe to be an anonymous source. Under the broad interpretation, Senator Cruz asked the defendant whether he authorized anyone at the FBI to be an anonymous source.

The broad interpretation is the better one.

That exacerbates a problem.

There wasn’t one — the — Clinton investigation in 2016.

There were two. And the one Cruz was invoking by addressing McCabe’s involvement in a WSJ story was not the email investigation. It was the Clinton Foundation investigation.

By October 25, 2016, McCabe had been notified that Barrett was working on a follow-up story to the October 23 article that would cover McCabe’s oversight of the CF Investigation and potential connections with McAuliffe campaign contributions to McCabe’s wife. McCabe thereafter authorized Special Counsel and AD/OPA to talk to Barrett about this follow-up story.

Lindsey’s Loaner AUSAs appear not to understand that we’re still fighting over a leak (plus McCabe’s response) that revealed a previously undisclosed investigation days before an election and somehow Trump is the victim? And so while they’re excusing Cruz’ imprecision they’re committing more of their own.

Now go back to the Response to the Bill of Particulars request. As Lemons did in the original map of the investigation, the Gabriel[s] buried the transcript for the exchanges about the “Clinton plan” in an exhibit, thereby burying the fact that they keep misrepresenting Lindsey Graham’s questions worse and worse. They don’t correct Lindsey Graham’s lie about this being an investigative referral. They couldn’t be bothered with the slop of his use of the word “taught.” And of course they don’t account for the fact that to Comey (and John Brennan), these details were interesting for what they said about Russia’s hacking of Hillary-related victims, not about the totally legal and normal thing Hillary was alleged to be doing, engaging in politics.

More insane still, the Gabriel[s] turn the “Clinton plan,” into a story about the Clinton email investigation.

During the same September 30, 2020 hearing, the defendant was asked by Senator Graham whether he remembered being “getting” or being “taught” of “a[n] investigatory lead from the intelligence community” regarding “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,” i.e., the conduct that the FBI investigated during the Midyear Exam investigation. See Dkt. 138-14 at 1. The defendant replied that that information “d[idn’t] ring any bells with [him].” See id. He similarly informed Senator Hawley that he did not “remember” receiving the investigatory [sic] referral, or “anything described” therein. See id. at 5. The government has nevertheless determined that the defendant’s handwritten notes appear to show that he was informed in September 2016 regarding an “HRC plan to tie Trump.” See Dkt. 138 at 14–15; see also Dkt. 138-13. [my emphasis]

Note, the Gabriel[s] are misrepresenting the transcript here. Comey said, “I don’t remember receiving anything that is described in that letter,” referring back to the misleading letter Ratcliffe wrote about all this, not the referral itself.

Once again, proving Comey’s point that what prosecutors are presenting as the alleged lies are, themselves, lies.

Having misrepresented the alleged lie, some pages later, they confess that, yup, they’re prosecuting Comey for the conduct they got no-billed on.

But, as provided in discovery and via the indictment, the government intends to seek the admission of evidence at trial on this count regarding the defendant’s statements to senators during the September 30, 2020, committee hearing. For instance, the defendant’s statements to Senators Grassley and Cruz regarding his use of Richman as an anonymous source concerning the Clinton email investigation and his statements to Senators Graham and Hawley regarding his alleged lack of memory concerning the so-called Clinton plan to “tie Trump” to Russia.

I feel like maybe we’re a second or generation into frothy misrepresentations of what happened in 2016 and 2017, and these young AUSAs are badly in need of a roadmap laying out the actual events behind Grampa Trump’s delirium, rather than just regurgitating the slop that John Solomon feeds them.

There’s a reality here, and these Loaner AUSAs seem blissfully unaware of that reality.

And that’s all before you get into the fact that whatever frothy Republicans were misled into believing by Ratcliffe back in 2020, taxpayers have spent millions of dollars to confirm all this is Russian disinformation, and having determined that, those who use it to get indictments are (per John Durham and his lead investigator Jack Eckenrode) committing a crime.

Finally, having redefined Russian disinformation to be about Hillary’s email investigation rather than the conspiracy theory that the plan was true and proven by Christopher Steele getting snookered by Oleg Deripaska or Michael Sussmann passing along Rodney Joffe’s discovery of a real anomaly in good faith, they’ve made the “Clinton plan” useless for the one thing it might have been used for: materiality. As Comey noted in his Bill of Particulars motion, that 2020 hearing had a clear scope, and that clear scope must be adopted to define the scope of the investigation Comey allegedly obstructed.

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.

That wasn’t a hearing about Clinton’s emails! So every effort to retcon events so they’ll fit the Ted Cruz question in fact makes the evidence useless to prove Comey obstructed anything. Graham did, very much, want to suggest that Comey should have viewed the dossier more skeptically having been exposed to Russian disinformation claiming a Clinton plan, which is why he asked the question.

But Lindsey’s Loaner AUSAs, in a desperate bid to fit the available facts to their false claims about false claims, have turned it into something else.

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Lindsey Halligan’s Seven Times 18-Minute Gap

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Update As I lay out here, Lindsey Halligan has submitted a digitally signed unsworn statement saying that there is nothing missing from the transcript. One possible explanation is that she did not instruct the grand jury as to the law. In any case, she now appears to claim she only presented the case once.

It’s time to return to the mystery of the magical disappearing Jim Comey grand jury transcript.

On October 28, Senior Judge Cameron McGowan Currie — the woman presiding over Jim Comey and Letitia James’ challenge to Lindsey Halligan’s appointment, ordered the government to provide her, no later than Monday, November 3, 2025, at 5:00 pm, all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.

On November 3, Currie revealed that when prosecutors gave her the transcripts on October 31, they hadn’t given her the part she most needed — revealing what Lindsey Halligan said to the grand jury — and ordered them to try again, asking them to provide a complete transcript and/or recording of what Lindsey the Insurance Lawyer did.

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. See ECF No. 10.

Accordingly, the Government is directed to submit, no later than Wednesday, November 5, 2025, at 5:00 pm, for in camera review, a complete Transcript and/or recording of all statements made by the indictment signer to the grand jury on September 25, 2025, to include statements made prior to and after the testimony of the witness and during the presentation of the three-count and subsequent two-count indictments.

On the morning of November 5, Magistrate Judge William Fitzpatrick, presiding over Comey’s challenge to DOJ’s bid to breach his privilege, ordered the government to provide all of that to Comey.

As part of this, I am going to order the government to disclose to the defense all grand jury materials, not just the testimony of the agent, but anything that was said during the course of the grand jury. How the grand jury was instructed, any presentation to the grand jury, any questions that were asked of either the agent or the United States Attorney, all of that is to be disclosed because I think the defense needs that in order to marry up the information that they have or the information that they will get to how it was used.

Among the concerns Pat Fitzgerald raised was that Lindsey the Insurance Lawyer had presented materials pertaining to the “Clinton Plan” that had been rejected during her first attempt as part of her obstruction charge.

And on top of that, Your Honor, I think there’s another motion coming from us, in light of some disclosures that were made Monday, where we think that the government is expanding its case, we believe, to include the conduct that was no true billed in Count One as part of its proof of Count Two, which raises serious issues for us. So we’ll do everything we can, but to do all that while getting Mr. Comey access to materials…

Later that day, November 5, Loaner AUSA Tyler Lemons submitted a filing claiming he had complied with Currie’s order; he explained they had previously only provided the grand jury transcript that “was previously provided to the government [passive voice] by the transcription service.” But now, in response to Judge Currie’s order, they were providing “the complete recording.”

The Court had previously Ordered the government to provide, for in camera review, all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts. [DE 95]. In response, the government provided the transcript of the Grand Jury proceedings that was previously provided to the government by the transcription service.

The Court’s subsequent Order at Docket Entry 148 additionally requested the recording from the Grand Jury presentation. Upon receiving this order, the government immediately contacted the transcription service and requested the complete recording.

But Loaner AUSA Lemons did not make the grand jury transcript available to Comey. Instead, on November 6 (and in this order), he (or rather James Hayes, the guy at Main DOJ who keeps writing these things but who has not filed an appearance) claimed he would comply with the order to provide all the material seized from Dan Richman. Then he (or rather Hayes) appealed the order to share grand jury transcripts.

The next day, November 7, Judge Currie noted she had received the grand jury materials on November 5.

In advance of a hearing on November 10, Comey revealed that Loaner AUSA Lemons had not complied with Magistrate Judge Fitzpatrick’s order.

This Court subsequently entered a written order denying the government’s motion for implementation of a filter protocol and compelling production of seized materials4 and the grand jury materials, together with restrictions on further government review.

4 On November 6, 2025, the government produced various copies of what appear to be the raw returns for the search warrants at issue, unscoped for responsiveness and filtered for Mr. Richman’s privileges. But the government provided incorrect passwords to large subsets of those materials. The defense engaged a vendor who worked throughout the weekend to load and process those materials; the government provided the correct passwords on November 9, 2025.

5 The Order also required the government to provide, in writing, by the same deadline: “Confirmation of whether the Government has divided the materials searched pursuant to the four 2019 and 2020 warrants at issue into materials that are responsive and non-responsive to those warrants, and, if so, a detailed explanation of the methodology used to make that determination; A detailed explanation of whether, and for what period of time, the Government has preserved any materials identified as non-responsive to the four search warrants; A description identifying which materials have been identified as responsive, if any; and A description identifying which materials have previously been designated as privileged.” ECF No. 161 at 1-2.

Despite certifying on November 6 that it had complied with the Court’s Order, ECF No. 163, the government did not provide this information until the evening of November 9, 2025, in response to a defense inquiry. The government told the defense that it “does not know” whether there are responsive sets for the first, third, and fourth warrants, or whether it has produced those to the defense, and said that in that regard, “we are still pulling prior emails” and the “agent reviewed the filtered material through relativity but there appears to be a loss of data that we are currently trying to restore.” [my emphasis]

Nevertheless, Fitzpatrick adopted the government request that he first review the “transcript” to see whether Comey’s suspicions about privilege and Fourth Amendment violations could result in the dismissal of the entire indictment.

Later that day, November 10, the government submitted what should have been the grand jury materials for Fitzpatrick’s review.

At that point, both Judge Currie and Magistrate Judge Fitzpatrick should have had a record of everything Lindsey the Insurance Lawyer did in her attempt to indict Jim Comey.

In spite of the urgency, we haven’t heard from Fitzpatrick yet; I was wondering if he wanted to get a sense of how the Currie hearing today went.

But maybe he’s having the same problem Currie did.

In the disqualification hearing today, Currie revealed (ABC; CNN; Politico)  that nothing from 4:28 on was recorded.

Currie also laid into Whitaker during the hearing on whether Attorney General Pam Bondi had reviewed the grand jury transcript in James Comey’s case, noting there was no record of anything that happened after 4:28pm ET that day. Comey wasn’t indicted for nearly two hours after that, according to available court transcripts.

“It became obvious to me that the attorney general could not have reviewed” the entire proceeding, Currie said, adding that it appeared “there was no court reporter present” at the time of the missing portion.

In preparation for Thursday’s hearing, Currie privately reviewed the transcripts and said previously that she thought looking at the transcripts was “necessary to determine the extent of the indictment signer’s involvement in the grand jury proceedings.”

That’s what I said, Judge Currie!! Pam Bondi couldn’t have reviewed the transcripts when she claimed to ratify this prosecution on October 31!

If Lindsey presented in the order of the exhibit numbers, the latter part of this presentment focused on the Mike Schmidt communications and the “Clinton plan” documents — the things Comey expressed particular interest in. Plus, if you’re missing the latter bit of the presentment, you don’t have proof the grand jury voted to indict.

Remember that the foreperson did not specify that just one of the charges was no-billed (though there definitely were two indictments, both of which Lindsey the Insurance Lawyer signed).

Lindsey the Insurance Lawyer has done Rosemary Woods one, two, three, four, five, six, seven better, creating a gap of 139 minutes, from 4:28 until 6:47, over seven 18-minutes worth long.

Not bad for a rookie.

Update: Per CNN, DOJ claims nothing is missing.

In a statement to CNN following the hearing, a representative for the Justice Department denied that there was anything missing from the transcript.

“There is no ‘missing two hours.’ That time period refers to when the jurors were deliberating behind closed doors, which would not be included in a transcription,” the statement said.

The DOJ, however, did not offer an explanation for the gap in court.

Update: I think the answer is that the last bit of Lindsey’s instruction is missing, plus the entirety of the deliberation, which wouldn’t be recorded.

Update: Corrected “indictment” which would be dismissed for “transcript.”

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“Witch Hunt!” Jim Comey Channels Media Matters

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One of the most scathing passages in Jim Comey’s reply brief on his vindictive prosecution claim repeats something Media Matters does persistently to understand how Donald Trump’s brain works.

It’s a reply to this passage of the government response, which is the cornerstone to their claim that Donald Trump’s years of attacks on Comey weren’t animus, they reflected, instead, a sound concern about crime.

The defendant argues that he’s being prosecuted to punish him for being a “[v]ocal [c]ritic of President Trump.” Def. Mem., Dkt. No. 59 at 11. Yet according to his own version of events, the earliest that he “spoke out on public and political issues” was June 8, 2017. Id.; see Def. Mem., Dkt. No. 59-4 at 2 (pinning the earliest exercise of the defendant’s First Amendment rights to criticize the Trump Administration to a New York Times article published on June 8, 2017). By that point, however, the President had already accused him of committing a crime. On May 21, [sic] 2017, less than three weeks after the defendant first testified that he never “authorized anyone at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation,” Def. Mem., Dkt. No. 59-2 at 4, the President publicly accused him of giving “false or misleading testimony,” Def. Mem., Dkt. No. 59-4 at 2. That accusation of criminal conduct was mounted before the defendant first stepped into his self-described role as a vocal critic of the President. And that “sequence of public events” should disabuse any notion that the defendant is being punished for exercising his First Amendment rights. See Wilson, 262 F.3d at 317 (reasoning that a defendant’s “theory on proving causation” will be “belied by the record” if the government’s “efforts to prosecute [him] preceded” his exercise of a protected right).

I focused closely on this passage — on other problems with this passage — here, noting that prosecutors had kicked off a fight about chickens and eggs.

I didn’t note that Lindsey’s Loaner AUSAs got the date wrong, May 21 instead of May 31 (Comey was generous enough not to note it), a date correctly recorded in both Comey’s appendices collecting these things (one, two).

[Note my screen cap is +5.]

But I missed the even bigger problem with this argument.

Lindsey’s Loaner AUSAs didn’t check what Trump was watching on Fox and Friends that day.

On May 19, 2017, in the uproar that followed, the Senate Intelligence Committee announced that Mr. Comey would testify before the Committee about his dismissal and the investigation into Russian interference with the 2016 election. Former FBI Director Comey Agrees to Testify in Open Session at Senate Intel Committee, U.S. Senate Select Committee on Intelligence (May 19, 2017), https://perma.cc/HC5K-KYUV.

That announcement was followed on May 31, 2017, by the first of the President’s allusions to “false or misleading” testimony by Mr. Comey. The government suggests that this tweet shows that the President’s prosecutorial motive arose from Mr. Comey’s May 3, 2017 Senate Judiciary Committee testimony and that he voiced it before Mr. Comey entered into public debate. ECF No. 138 at 28. The tweet shows nothing of the kind.

To begin, the tweet does not reflect the President’s opinion about Mr. Comey, nor does it refer to Mr. Comey’s May 3 testimony as the government misleadingly implies. Instead, the tweet quotes a report based on a conversation on Fox and Friends describing a letter written by former Trump campaign advisor Carter Page stating Page’s view of Mr. Comey’s March 20, 2017 testimony about links between the Trump campaign and the Russia government.5 This tweet can hardly qualify as expressing the President’s legitimate prosecutorial motive—as opposed to relaying hearsay from a television program with no factual basis. In fact, it is the type of unfounded accusation that displays animus rather than a genuine interest in justice. And despite the government’s reliance on it as preceding Mr. Comey’s public statements, the tweet came after the news broke about Mr. Comey’s imminent testimony, i.e., after the President knew that Mr. Comey intended to exercise his First Amendment rights to speak publicly about Mr. Trump’s conduct in office. The President’s preemptive effort to discredit Mr. Comey reflects his animus triggered by Mr. Comey’s anticipated protected speech.

Finally, and most damaging to the government’s theory of the President’s longstanding prosecutorial motive to bring this case, the tweet has nothing to do with this prosecution: it was issued years before the testimony that forms the basis for the charges against Mr. Comey.

5 The tweet (issued in two parts) says: “So now it is reported that the Democrats who have excoriated Carter Page about Russia, don’t want him to testify. He blows away their….” “…case against him & now wants to clear his name by showing ‘the false or misleading testimony by James Comey, John Brennan…’ Witch Hunt!” Appendix at 1. The tweet was issued thirty minutes after Fox and Friends broke the same story. Id. And Mr. Comey had testified publicly before the House Intelligence Committee on March 20, 2017, to confirm the Trump-campaign and Russian-interference investigation. See Mueller Report, supra n.4 at 52-53

Trump was parroting Carter Page complaining about Comey’s March 20 testimony, not commenting on Comey’s May 3 testimony, testimony that prosecutors want to make relevant to this case.

Donald Trump was parroting Carter Page and that’s what prosecutors claimed was the genesis of Trump’s purported good faith prosecutorial concern about Comey’s leaking.

Oops.

There is, to be clear, a fair amount of chicken and egg in Comey’s reply, too, some not entirely persuasive (though that pertains to their representation of the evidence prosecutors presented, not the legal argument, and so could be mooted if some of this gets suppressed). But it reads with the confidence of people who, now, have the exhibits with which prosecutors hope to prove their case, as well as a sense of whether and if so which exhibits will be thrown out as unlawfully obtained.

And in the process, Comey has demonstrated to the Loaner AUSAs how little they know about this whole story and the man whose batshit rants they’re treating as credible.

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Gabriel Diaz’ 14 Exhibits

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As I noted here, in a telephone hearing yesterday, Magistrate Judge William Fitzpatrick ordered the government to provide him with the grand jury transcripts in the Jim Comey case, which he will review after reading an ex parte filing from Comey’s team laying out the unlawful evidence they suspect got presented to the grand jury.

Loaner AUSA Gabriel Diaz may have helped them write that memo by confirming there were 14 exhibits presented to the grand jury.

His claim — that there were 14 exhibits — may not be entirely true.

I say that because that number — 14 — matches the number of exhibits included in last week’s response to Comey’s vindictive prosecution claim (the reply to which Comey submitted yesterday, which I’ll return to). The exhibits posted to docket last week, which all include exhibit tags, consist of the following:

This order would suggest they laid out the evidence that Comey lied, focusing heavily on the 2016 exchange (the only one from when Richman was at the FBI), and presenting Comey’s April 23, 2017 thank you email to Richman ahead of Richman’s February 11, 2017 recruitment of Chuck Rosenberg, possibly creating the misimpression that Comey asked for Richman to weigh in on what became the April 2017 story.

Then they presented the Comey memo exchange (Exhibits 10 and 11), and the “Clinton Plan” (Exhibits 12-14). As presented, they did not present the “Clinton plan” referral itself to the grand jury (which might have made it even more apparent that Lindsey was not asking about what Comey’s notes laid out).

There must be at least one more exhibit as presented for the indictment the grand jury approved. As laid out here, the grand jury was not shown how Comey responded to Ted Cruz’ question (to say nothing of Chuck Grassley’s question on which Cruz’ question was based). That is, as laid out here, prosecutors did not include the exhibit that laid out the one lie actually charged.

There must be a video or something — though I find it interesting that they didn’t provide a transcript of Cruz’ question (if they didn’t), since he garbled it about ten different ways.

There are three other questions this exhibit list raises for me.

First, one concern Comey’s attorneys have is the treatment of the materials obtained with a second warrant for Dan Richman’s Columbia emails  — presumably the source of Exhibits 4-9.

What’s interesting is the Bates stamps for those are inconsistent. The earlier set are marked with a Richman Bates stamp.

The two later ones, including the one from the same Jim Comey ReinholdNiebuhr7 alias Gmail, have COLUM Bates stamps.

That suggests those two sets of communications were treated differently. Possibly, the earlier one was part of Richman’s privilege log.

The Bates stamps on the texts between Richman and Mike Schmidt also raise questions, because there’s no source of any kind noted (or if there is, it is redacted), just a series starting with 4801.

Given some of the other details we’ve learned: that all the Feebs involved in this report directly to Kash Patel, that the agent who read the attorney-client privileged text was reading the entire Cellebrite extraction of Richman’s phone — that is, without privileged texts removed — it raises real questions about whether some other team provided them, a team with its own (obscured) Bates stamp.

Worse still, the one of the two agents who read the privileged text attested that he only handed Miles Starr two pages of texts, all dated May 11.

SA Warren provided the indictment preparation team a two-page document containing limited text message content only from May 11, 2017, predating the reference to potential future legal representation.

But the exhibit is eight pages long!

Having been told there was privileged communication there and shielded from it, someone went back to those texts to get more of them, to present them to the grand jury. And that same someone led the Loaner AUSAs to believe that sharing the Comey memos after consulting with attorneys was a crime.

Effectively, SA Warren has reported a crime committed by his superiors, the willful violation of Jim Comey’s privilege.

Which is undoubtedly why James Hayes is so intent on letting the FBI lead a privilege review.

Finally, one more thing. Remember how weird the no-billed indictment is, which I laid out here?

The indictment the grand jury approved charged Comey with lying to Ted Cruz (as Diaz would have it, without being shown what that lie is), and obstructing a Congressional proceeding, “by making false and misleading statements before that committee.”

The exhibit list makes clear that Lindsey the Insurance Lawyer did shoehorn the no-billed charge into the obstruction charge, presumably treating questions about the Comey memos and “Clinton plan” — the only things in the indictment that were material to the scope of the hearing — as “misleading” rather than “false” statements. Last week, Pat Fitzgerald had said they were going to raise concerns about that this week, but they may be waiting to get that grand jury transcript.

Now go back and look at how that obstruction charges looks in the no-billed (top) and approved (bottom) indictment.

Update: As Amicus12 points out below, sometime within a day or so of the indictment, this error got fixed. Here’s what the fixed document looks like:

It is increasingly clear that Lindsey the Insurance Lawyer literally replaced what would have been Count Three of the no-billed indictment with Count Two of the approved indictment. That explains why that page has:

  • Staple and scan marks matching the real indictment
  • The numbering from the second indictment (these paragraphs should be numbered 7 and 8 in the no-billed indictment)
  • Both the signature of the foreperson (note the part of a signature that crosses into the “U” of the True Bill line) and Lindsey herself on that page

She simply swapped the page.

There’s good reason to ask whether she wasn’t just being dumb and inexperienced (which is what it looked like in the 7-minute hearing with the judge), but was also being deceitful.

For example, it’s possible that the original indictment charged Comey with obstructing the Senate’s investigation only by making false statements, but in a bid to get the material things in there pertinent to the larger investigation, the “Clinton plan” and the Comey memos, Lindsey the Insurance Lawyer added the word “misleading” to lower the bar to get a vote from the grand jurors.

It’s unclear whether Fitzpatrick will or can review some of these issues. He’s scrutinizing the indictment for unlawful and privileged exhibits. That also might explain why Diaz tried hard to prevent Comey from providing a list of things to look for.

The unlawful exhibits are bad enough. But there seems to be worse still.

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Kash Patel’s Plot Against Jim Comey Thickens!

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The two sides have submitted additional filings in advance of a hearing about the attorney-client and Fourth Amendment violations in the Jim Comey case:

 

The government claims that Comey hasn’t demonstrated a need to see what happened in the grand jury because there’s no way any privileged or Fourth Amendment violative material was presented, and even if it were, that would be insufficient to dismiss the indictment, which is the standard.

Even assuming the defendant could prove that the government violated the Fourth Amendment or attorney-client privilege in its grand jury presentation (and to be clear, he cannot), the remedy would be to suppress that evidence at trial—not to dismiss the indictment. So, the defendant has not shown that “a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” Fed. R. Crim. P. 6(e)(3)(E)(ii). He is not entitled to access grand jury material.

There are problems with both these claims.

First, Miles Starr was briefed orally on the comms between Dan Richman and Mike Schmidt and Jim Comey the morning of the grand jury presentment. Then, the FBI Agent who was tainted provided a written document that only covered stuff on May 11.

On the morning of September 25, 2025, the team was preparing for an indictment of James Comey, to occur later that afternoon. SA Warren provided case agent SA Miles Starr and an FBI Office of General Counsel (OGC) attorney a limited overview of the text message communications to and from “Michael Garcia” (now understood to be Daniel Richman). SA Warren advised SA Starr and the FBI OGC attorney that some of the messages appeared to reference potential future legal representation. The FBI OGC attorney immediately advised that any of the text message communications referencing potential future legal representation should not be part of the indictment preparation. SA Warren provided the indictment preparation team a two-page document containing limited text message content only from May 11, 2017, predating the reference to potential future legal representation.

But DOJ itself recognizes that anything after May 9, the day Comey was fired, may be privileged.

4 The defendant was removed as FBI Director on May 9, 2017. He told the Office of Inspector General that “the day after his removal, or ‘very shortly thereafter,’ he retained attorneys Patrick Fitzgerald, David Kelley, and Daniel Richman.” Dkt. No. 138-11 at 33 (Aug. 2019 Office of the Inspector General Report). Any claim of privilege involving those attorneys would necessarily arise after May 9, 2017.

So they took insufficient steps to prevent taint of the grand jury, because materials between Richman and Comey from May 9 and 10 may well be privileged.

Even if that were sufficient, there’s no reason why communications between Comey and Richman in May could be deemed relevant to the grand jury. That’s because he admitted sharing information with Richman back in 2017. He didn’t hide it from the Senate Judiciary Committee.

Meanwhile, the government has no fucking clue whether it presented other Fourth Amendment violative content to the Grand Jury. They confessed last night, days after telling Magistrate Judge William Fitzpatrick they had complied with his order to provide this information, that they had no fucking clue whether they were looking at data that included both scoped and unscoped content (though this passage suggests that the materials obtained from Columbia, which includes the only material that remotely matches the first charge, with the second warrant were scoped).

5 The Order also required the government to provide, in writing, by the same deadline: “Confirmation of whether the Government has divided the materials searched pursuant to the four 2019 and 2020 warrants at issue into materials that are responsive and non-responsive to those warrants, and, if so, a detailed explanation of the methodology used to make that determination; A detailed explanation of whether, and for what period of time, the Government has preserved any materials identified as non-responsive to the four search warrants; A description identifying which materials have been identified as responsive, if any; and A description identifying which materials have previously been designated as privileged.” ECF No. 161 at 1-2.

Despite certifying on November 6 that it had complied with the Court’s Order, ECF No. 163, the government did not provide this information until the evening of November 9, 2025, in response to a defense inquiry. The government told the defense that it “does not know” whether there are responsive sets for the first, third, and fourth warrants, or whether it has produced those to the defense, and said that in that regard, “we are still pulling prior emails” and the “agent reviewed the filtered material through relativity but there appears to be a loss of data that we are currently trying to restore.”

Remember, this entire investigation started when Kash discovered documents that had been handled improperly. And now, because these documents have been handled improperly, his own team has been violating Jim Comey’s Fourth Amendment rights.

There are several more alarming details in today’s filings. First, both FBI agents exposed to tainted information (in addition to Miles Starr, from whom DOJ didn’t bother to obtain an affidavit, and who has not been withdrawn from this or any other investigative teams) are part of the Director’s Advisory Team, meaning they work directly for Kash Patel.

The agent who first saw the privileged material claims:

  • They didn’t know who Michael Garcia was (a pseudonym Richman used for these communications), but nevertheless reviewed them as part of a search for communications between Comey and Richman
  • They were handed the entire extraction of Dan Richman’s devices, suggesting it did not extract the privilege reviewed content

Indeed, the materials DOJ provided Comey — the ones they had been accessing — had not been filtered for privilege or responsiveness.

4 On November 6, 2025, the government produced various copies of what appear to be the raw returns for the search warrants at issue, unscoped for responsiveness and filtered for Mr. Richman’s privileges. But the government provided incorrect passwords to large subsets of those materials. The defense engaged a vendor who worked throughout the weekend to load and process those materials; the government provided the correct passwords on November 9, 2025.

Effectively, Kash has been investigating Comey using a general warrant on his friend Dan Richman.

It’s not just Kash and his personal squad of Jim Comey hunters who’ve violated Comey’s Fourth Amendment rights, Comey’s filing suggests.

Pam Bondi’s imagined “ratification” of the grand jury proceedings — the ones based on incomplete records — would have exposed her, too, to unlawful material.

2 Concerns about taint arising from the improper use of potentially privileged and unconstitutionally-obtained materials are heightened because of the government’s continued use of the materials obtained pursuant to the warrants and grand jury transcripts. On October 31, 2025, the Attorney General purported to ratify the indictment based on her review of the grand jury proceedings. ECF No. 137-1 at 2-3. If that review entailed further improper use of privileged or unconstitutionally-obtained materials insofar as they were presented to the grand jury, it casts further doubt on the propriety of the government’s conduct of this case. The government produced the grand jury materials on November 5, 2025 to Judge Currie for in camera review, and thus could quickly produce the same materials to the defense. See ECF No. 158.

The Loaner AUSAs are trying to cut their losses, by asking Fitzpatrick to conduct a review of the grand jury materials himself — no doubt to prevent Comey from using grand jury material in his challenge of these warrants, which is currently due on November 19.

But there’s virtually no way he would be able to figure out if Lindsey the Insurance Lawyer presented material that violated Comey’s Fourth Amendment rights.

This should all be sorted out at a hearing at 4PM ET.

Update: Fitzpatrick came in ready to accept the government’s request he review this in camera. But after it became clear he would not budge on that, Rebekah Donaleski asked to submit something ex parte tomorrow to lay out where they believe the violations are.

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An awkward picture of Eagle Ed Martin and Lindsey Halligan posing in his office.

Letitia James Highlights Eagle Ed Martin Just Before He Goes on a Conspiratorial Rant

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Vindictive and selective prosecution cases are always nearly impossible to win, because of how narrowly the precedent draws the analysis. To prove vindictive prosecution, the defendant has to prove that the prosecutor who made a charging decision harbored animus to the defendant.

But of course, in Jim Comey and Letitia James’ case, the playacting prosecutor, Lindsey Halligan, is just doing what her boss installed her to do. She didn’t act out of animus towards Comey and James, except insofar as such animus is a litmus test for belonging in Trump’s tribe (though her brief stint at the Smithsonian also exposed her as a dumb bigot, which could be relevant in James’ case). She acted out of a corrupt willingness to do anything her boss tells her to do.

Here’s how Lindsey’s Loaner AUSAs argued that Comey had not met that standard in their response to his vindictive and selective prosecution motion.

To start, the relevant analysis is whether the “prosecutor charging” the offense “harbored vindictive animus.” Wilson, 262 F.3d at 316; see United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995) (noting that the focus “is on the ultimate decision-maker”). Here, that prosecutor is the U.S. Attorney. Yet the defendant doesn’t present any evidence that she harbors animus against him. Instead, he says that he doesn’t need any such evidence because his claim “turns on the animus harbored by the official who prompted the prosecution.” See Def. Mem., Dkt. No. 59 at 21. And, according to him, that is the President. See id. As discussed below, the President does not harbor vindictive animus against the defendant in the relevant sense. Before reaching that issue, however, the Court should determine whether the defendant has offered sufficient evidence to find that the President displaced the U.S. Attorney as “the ultimate decision-maker” in bringing this prosecution. See Gomez-Lopez, 62 F.3d at 304. The only “direct evidence” on the issue says otherwise. See Wilson, 262 F.3d at 314.

The defendant’s argument relies on the imputed-animus theory. The Fourth Circuit has never adopted that theory. In fact, when a defendant asked the Fourth Circuit to impute animus from investigating law-enforcement agents, the Fourth Circuit categorically rejected the theory. See United States v. Hastings, 126 F.3d 310, 314 (4th Cir. 1997) (“We will not impute the unlawful biases of the investigating agents to the persons ultimately responsible for the prosecution.”); see also United States v. Cooper, 617 F. App’x 249, 251 (4th Cir. 2015). That is consistent with other circuits’ application of the theory in that context. See, e.g., United States v. Gilbert, 266 F.3d 1180, 1187 (9th Cir. 2001) (“In all but the most extreme cases, it is only the biases and motivations of the prosecutor that are relevant.”); United States v. Spears, 159 F.3d 1081, 1087 (7th Cir. 1998).

When courts have entertained the imputed-animus theory in other contexts, they have required a significant evidentiary showing: there must be “evidence that the federal prosecutor did not make the ultimate decision to bring the indictment.” Spears, 159 F.3d at 1087.

It is true that Comey and James (in a filing submitted Friday) both did ultimately say Trump ordered up their prosecutions, relying heavily on his tweet ordering Pam Bondi to install Lindsey Halligan to do so.

But they took a different approach in laying out the weaponization of DOJ. Comey, relying on a 60-page exhibit of Trump tweets to demonstrate the President’s animus, focused relentlessly on Trump. He didn’t even mention the now-FBI Director’s equally rabid animus.

Tish James had her exhibit showing how obsessively Trump hates her too; it includes not just tweets, but also speeches, and at 113 pages is almost twice as long as Comey’s exhibit.

But James also focused on the way the Trump Administration, more generally, has been (literally) stalking her, notably in the form of Eagle Ed Martin, as well as Pam Bondi, Stephen Miller, and Bill Pulte (this section is where James includes the Reuters report about firing the FHFA IG to prevent him from sharing information with prosecutors; that footnote and others are at the bottom of this page).

AG Bondi took the President’s mission to heart, and on the first day of her appointment, established DOJ’s “Weaponization Working Group,” with the stated objective to examine “[f]ederal cooperation with the weaponization” by “New York Attorney General Letitia James” to “target President Trump, his family and his businesses,” among other top priorities. 15 Ex. C. The goal was to retaliate against the President’s perceived political enemies, including AG James.

In March, President Trump also issued a Presidential Memorandum, “Rescinding Security Clearances and Access to Classified Information from Specified Individuals,” specifically calling out AG James, claiming “it is no longer in the national interest” for her, along with fourteen of his other perceived political opponents, to have a security clearance or access classified information. Ex. D.

The retribution campaign against AG James had only just begun. Around the same time, another federal agency, the Federal Housing Finance Agency (FHFA), led by Director William Pulte, was also looking for dirt to use against AG James. By April 14, they had concocted it. Mr. Pulte delivered a criminal referral “[b]ased on media reports” to DOJ against AG James, claiming she had “in multiple instances, falsified bank documents and property records to acquire government backed assistance and loans and more favorable loan terms.” Ex. F at 1. The criminal referral cherry-picked documents to claim fraud over three properties—one even going back to 1983—none of which was the Peronne Property at issue in the indictment.16 The referral asked DOJ to open a criminal investigation into AG James. See Ex. F at 1. Mr. Pulte also coordinated with Edward Martin—the self-described “captain” of DOJ’s Weaponization Working Group who is President Trump’s close confidante and would later also be named a Special Attorney.17 Reporting even indicates that President Trump had been bypassing his senior DOJ lead regularly telephoning Martin for updates on his work, leaving [DAG Todd] Blanche ‘frustrated and annoyed,’” according to sources.18

Standing outside the White House on the day the referral was released, one of the President’s aides, Deputy Chief of Staff Stephen Miller, told reporters AG James “is one of the most corrupt, shameless individuals ever to hold public office” and “is guilty of multiple, significant, serial criminal violations” for having “persecute[d] an innocent man,” referring to President Trump.19 President Trump also did not withhold his views about FHFA’s criminal referral to DOJ, attacking AG James directly in several social media posts discussing the referral:

Turns out you can’t have your principal residence in Virginia and be AG of New York. You can’t say your dad’s your husband. Or claim a five-unit is a four. But that’s what Letitia James did—while going after Trump for the same thing. You’ve got to be kidding me

Ex. A. at No. 334;

Letitia James, a totally corrupt politician, should resign from her position as New York State Attorney General, IMMEDIATELY. Everyone is trying to MAKE NEW YORK GREAT AGAIN, and it can never be done with this wacky crook in office.

Id. at No. 333.

On the heels of the referral to DOJ, in May, Mr. Martin admitted that he planned to use his authority to expose and discredit opponents of the President whom he believes to be guilty. 20 He made plain that it did not matter if there were no facts to back up President Trump’s accusations or even if a charge had no merit: “If they can be charged, we’ll charge them. But if they can’t be charged, we will name them. And we will name them, and in a culture that respects shame, there should be people that are shamed.”21 Discussing targets for criminal investigation, Martin stated that the Weaponization Working Group’s prerogative included “Letitia James.”22

And to support this additional prong of animus, James included a second, 12-page exhibit, which includes (among other things), all the creepy pictures Eagle Ed has posted of himself stalking James, including pictures showing him reviewing files with Halligan just before she indicted James or just randomly chatting up someone at FHFA.

It also documents Eagle Ed’s juvenile trolling on Xitter.

It may be an awkward time, for Eagle Ed, to have such a focus on his trollish obsessions.

That’s because he is currently involved in equally pathetic troll campaign targeting a woman that right wing nutjobs have decided must be the Pipe Bomber based off gait analysis — I guess they’ll get around to using phrenology? — and their dislike of how she testified against Guy Reffitt, the first Jan6er to go to trial.

Anna Bower has been spending her weekend documenting how Eagle Ed first posts, then deletes, tweets trying to gin up the frothy mob. In the first such instance, someone — maybe Todd Blanche — made Eagle Ed affirmatively deny the gait-analysis claims as a “fake.”

These tweets show not just that a key cog in the James prosecution — the guy who accepted allegations from Bill Pulte and then ferried them to the woman playacting as US Attorney — is a wild conspiracy theorist happy to magnify any kind of bullshit he gets from frothy right wingers, but also that some babysitter at DOJ knows he is, and is attempting to rein him in.

I’m not sure whether Comey’s more focused approach or James’ wholistic one works better. Given that prosecutors dismissed Comey’s comparators because none had precisely the same role he once did, he certainly has an opportunity to use the opening memo that Tyler Lemons submitted last week which led to these charges to show that the current FBI Director lied his ass off to the Senate Judiciary Committee when he told Mazie Hirono that he had no intention of revisiting history to prosecute Comey.

Senator Hirono (02:18:49):

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

Kash Patel (02:18:54):

I have no intentions of going backwards-

The opening memo shows that Kash wasted no time in doing just that — not just chasing the John Durham prosecution predicated of Russian disinformation, but putting Durham’s wildly-conflicted lead investigator in charge, literally finding a lame excuse to revisit the Durham investigation.

The broad or narrow scope may not matter. Indeed, unless the cases get dismissed because Lindsey was just playacting as US Attorney, there’s a non-zero chance these arguments will be appealed through the Fourth Circuit together, which is presumably why Comey had loaded his team with appellate lawyers and scores of people are submitting amicus briefs.

These vindictive and selective prosecution arguments may make new precedent, about whether the President can repurpose the Department of Justice to prioritize jailing his political adversaries.

But Eagle Ed has now made clear that one element of that repurposed DOJ is seizing and stoking baseless conspiracy theories to rile up the base.

15 Ryan Lucas, New attorney general moves to align Justice Department with Trump’s priorities, NPR (Feb. 5, 2025), https://perma.cc/WLU8-FPBL.

16 Mr. Pulte’s conduct demonstrates how far allies of the President would go to carry out his “get James” orders. Public reports indicate that Mr. Pulte “skipped over his agency’s inspector general when making criminal referrals” against President Trump’s political enemies. Reports also indicate he may have bypassed ethics rules in doing so. Marisa Taylor & Chris Prentice, Exclusive: Trump official bypassed ethics rules in criminal referrals of Fed governor and other foes, sources say, Reuters (Oct. 6, 2025), https://perma.cc/HK6Y-LJVR. The FHFA has no generalized crimefighting or anti-fraud authority. It does not even have an express authority to make criminal referrals besides those granted to the FHFA’s Inspector General under the Inspector General Act of 1978. In addition to violations of the act itself, Mr. Pulte may have failed to comply with the FHFA’s own Privacy Act regulations, which require FHFA to “ensure” that records containing personally identifiable information are “protected from public view.” Domenic Powell, Are Pulte’s “Mortgage Fraud” Investigations Legal?, Yale J. Reg.: Notice and Comment (Nov. 1, 2025), https://perma.cc/2U6G-S46X.

17 Alan Feuer et al., Trump Demands That Bondi Move ‘Now’ to Prosecute Foes, N.Y. Times (Sept. 20, 2025), https://perma.cc/FC9R-U8TK.

18 Andrew Feinberg, Trump ally probing rivals’ ‘mortgage fraud’ speaks directly with the president – and skips typical DOJ hierarchy, The Independent (Aug. 29, 2025), https://perma.cc/4LXUUUAC.

19 Statement of Stephen Miller, White House Homeland Security Adviser and Deputy Chief of Staff for Policy, to Reporters outside the White House (Apr. 18, 2025), https://perma.cc/9X5GX7YB (emphasis added).

20 U.S. Attorney Ed Martin Holds News Conference, C-SPAN (May 13, 2025), https://www.cspan.org/program/news-conference/us-attorney-ed-martin-holds-news-conference/659817.

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Spill! The EDVA Case against Jim Comey Could Well Harm the Even More Corrupt SDFL Case

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It looks increasingly likely that because someone snuck a peek into Jim Comey’s privileged communications — or, because Tyler Lemons cares enough about his bar license that he disclosed that someone snuck a peek into Comey’s privileged communications — Comey may get a ruling that the government violated his Fourth Amendment rights, throwing out some of the material used in the government’s filing laying out the theory of their case.

The exhibits to that filing which were seized from Dan Richman include a bunch of communications sent from two different Columbia University emails, as well as texts sent on Richman’s phone.

  • January 2, 2015: Letter stating that Richman would not comment on matters he “work[s] on for the Bureau” [1st Columbia email]
  • October 29, 2016: Text saying, “The country can’t seem to handle your finding stuff” [2nd Columbia email]
  • October 30, 2016: Richman offering to write an op-ed for NYT [2nd Columbia email]
  • November 1-2, 2016: Comey suggests perhaps Richman can make Mike Schmidt smarter [2nd Columbia email]
  • November 2, 2016: Richman noting story about Hillary [2nd Columbia email]
  • February 11, 2017: Richman recruiting Chuck Rosenberg for article [1st Columbia email]
  • April 23, 2017: Email to Richman thanking him [Columbia email]
  • May 2017: Texts between Schmidt and Richman [Dan Richman’s phone]

As Rebekah Donaleski described the warrants in Wednesday’s hearing, the Columbia emails likely came from a warrant served on the university in October 2019, whereas the texts should have only been available via the fourth warrant on Richman’s phone, but as I’ll show, may have instead come from unlawful searches from the hard drive seized with the first warrant in August 2019.

  • August 29, 2019: FBI seizes Richman’s hard drive. The government does a privilege review of that, not Richman.
  • October 2019: FBI obtains emails from Columbia. Richman withheld privileged or sensitive (from students), but conducted no responsiveness review.
  • January 2020: FBI obtains Richman’s iCloud. His attorney did a privilege review. The warrant specifically said it could not seize privileged material.
  • June 4, 2020: FBI gets warrants to access iPhone and iCloud back-ups on the original hard drive.

The arguably legal emails don’t prove DOJ’s case

Aside from the fact that the FBI accessed them without a warrant tailored to the current investigation, the two bolded emails were clearly responsive to the investigation into whether Richman leaked the SVR materials in advance of the April 22, 2017 story about them. But as I noted here, they don’t help the government prove that Comey lied to Ted Cruz about authorizing Richman, while he was at FBI, to be an anonymous source for a story about the Hillary investigation because:

  • There’s no evidence of Comey’s involvement in the story in advance
  • The emails unquestionably post-date Richman’s departure from FBI (Anna Bower expanded on the work I did to show that Richman was arguably never formally “at FBI” in this period)
  • Richman was a named source in the story

The January 2, 2015 email might be legal, but who cares? It doesn’t help the government’s case at all (and most likely was used to mislead grand jurors about the time frame of Richman’s relationship with the FBI).

The emails that come closest to proving the government’s case may be out of scope

It’s less clear whether the emails from fall 2016 — the ones that best match the theory of the case — should have been accessible to investigators for the investigation into whether Comey lied to Ted Cruz. That’s because — at least per a November 22, 2019 interview — Richman didn’t learn about the SVR emails until January 2017.

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

Nothing in the hearing on Wednesday describes the date scope of the warrants. But immediately after she described this warrant, Doneleski raised doubts about whether the Columbia emails had been reviewed for responsiveness, with non-responsive emails sealed.

As Your Honor is aware, each of these warrants require the government to conduct a responsiveness review and then seal and not review the nonresponsive set. I don’t know if that happened here, and Mr. Lemons didn’t describe whether the government created a responsive set.

[snip]

MS. DONALESKI: Judge, the government provided us with affidavits describing what happened; and from the affidavits, it sounds like the agents accessed the filtered returns, meaning both the nonresponsive and responsive set, because Mr. Richman’s counsel and Columbia did not conduct a responsiveness review. If that is indeed what they accessed, for the reasons we set forward in our papers, that clearly violates the Fourth Amendment because the government cannot then go back into a nonresponsive set that has not been identified responsive and continue searching pursuant to stale warrants for separate offenses.

If these emails were out of scope according to the 2019 warrants, then they should be sealed, inaccessible to anyone.

The privileged material was prohibited under the previous warrants

Tyler Lemons tried to excuse an agent for having read privileged communications by explaining that in those communications, Dan Richman used the name Michael Garcia.

MR. LEMONS: I don’t know the status — I don’t know if the team knew the status of their relationship. The other complicating factor, Your Honor — and we have two affidavits here that we’ve provided to the defense, and we have copies for the Court as well if you’d like to review it — one of the issues was the conversation that was being reviewed, the telephone name associated with one of the participants was Michael Garcia. And so it wasn’t as if the agent went in reviewing a conversation between James — the defendant and Daniel Richman; it was a conversation between the defendant and Michael Garcia. And so at a certain point, the agent began to understand the topics and the kind of factual — the history of the case; came to the conclusion that Michael Garcia looks like it’s actually Daniel Richman under a pseudonym or whatever it is. And at that point, it kind of brought into focus what, potentially, the conversations that the agent was looking at could be pertaining to.

That’s the name Richman used in texts exchanged with Mike Schmidt about the memo Comey had documenting Trump asking to let the Mike Flynn case go and because of timing — Richman only formally represented Comey after he was fired on May 9 — it’s likely the privileged stuff is the counterpart to this discussion.

It’s unclear whether these texts would have been in scope for the Arctic Haze investigation. In addition to the leak crime, 18 USC 793, the government also investigated using government materials, 18 USC 641, converting government records for personal use. In an interrupted comment, Lemons claimed it was responsive, which it might have been to that second crime. Donaleski wondered how the government filed them if they paused all review.

The government filed, on Monday, text message chats that came from the Arctic Haze warrants.

The question is how privileged texts between Richman and Comey were available in the first place. Lemons blamed the review Richman did.

MR. LEMONS: It would appear that he was — I don’t know for sure, Your Honor, but my assumption and based on him raising his hand on this, is that he was reviewing material that had not been filtered by Daniel Richman or his attorneys.

But given Donaleski’s mention of that original warrant, the one for which Richman did not do a filter, I wonder if DOJ got unfiltered content by accessing the unfiltered backup (which is effectively how prosecutors got the most damning texts used against Hunter Biden at his trial).

However investigators got to the privileged texts, it doesn’t fix the problem because they still accessed stuff from Comey before he had had an ability to make privilege determinations. And Donaleski argued anything privilege was not permitted to be seized, so anything reviewed now would be unlawful.

the warrants themselves specify that the government could only seize non-privileged materials

[snip]

MS. DONALESKI: And so to the extent the government now wants to look at materials that Mr. Richman’s counsel identified as privileged, those were never within the scope of the warrants, so they were never properly seized by the government, so no one can look at those materials. They weren’t seized five years ago. The government’s filter team didn’t challenge those designations, so no one can look at them. There’s no case law that says the government can go back five years later under stale warrants for separate offenses to look at things that were not seized five years ago.

Here’s where things get interesting, though.

The Comey memos are unresponsive to this investigation

Comey’s team has until the 19th to submit a Fourth Amendment challenge to this material. I imagine their argument may include the privilege problem and the responsiveness problem.

But then there’s the issue of proving that these texts are relevant to this investigation.

The Comey memos are undoubtedly responsive to the conspiracy conspiracy Trump is attempting to put together in Florida. This entire privilege effort seems to be an effort to clean up the material for the other investigation, not this one (which may be why James Hayes is on all the most important filings in this fight). The Florida case seems focused on claiming that by releasing the memo with the intent of precipitating a Special Counsel investigation, Comey unfairly harmed Trump.

But to argue these texts are responsive to this investigation, prosecutors would have to claim that they’re still relevant even after Comey admitted he had shared the memo via Richman, way back in 2017. Republicans have known that detail for years. His public admission of that fact is central to their claim that Trump had legitimate cause to worry about Comey leaking.

But to make that claim, they have to rely on the same false claim prosecutors (one of the filings that metadata attributes to James Hayes) made last month: that the act of sharing a memo that Comey understood to be unclassified was a criminal leak. (Starting in 2020, the government began to have problems charging 18 USC 641 in this context and precedent may rule it out any longer.)

That is, if prosecutors have to get a warrant for this material, it’s not clear they could get one for the EDVA case. If they tried for the Florida case, it could well blow up that case.

This whole effort started when, in the wake of the taint, prosecutors decided to use this case to quickly force though access to the privileged texts they saw. But thus far, the effort may make it harder to access material for both this case and that one.

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