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Pam Bondi’s DOJ Gets Admonished a Second Time for Indict[ing] First, Investigat[ing] Second

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Remember how, 72-hours ago, I wrote an interminable post about how this Comey case may be about more than just two charges filed back in September?

I argued, among other things, that Comey may have asked for grand jury transcripts not (just) because getting them in December would help him win a vindictive prosecution claim that’ll be heard a month earlier, but because one of the now-three judges involved in the case might see the validity of his argument, and order the government to provide him those transcripts now.

[W]hat these filings may do — especially the grand jury one — is affect several things going on, starting this week.

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

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

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

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

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

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

Today, William Fitzpatrick did just that. (ABC; Politico; CNN; WaPo)

By Politico’s description, loaner AUSA Tyler Lemons’ explanation of the potential spill in September appears to have been no more convincing today than it was in his reply brief, which I wrote about here.

Tyler Lemons, an assistant U.S. attorney brought in from North Carolina to assist Halligan with the case, responded to the judge. He said investigators reviewing the search warrant materials anew just days before Comey’s indictment halted the process after stumbling upon information they thought might have been subject to Comey’s attorney-client privilege with Richman. He said the materials are now “isolated on a desk in FBI headquarters.”

Lemons added, “We’re not going to touch this evidence until the court approves it.”

The magistrate judge said prosecutors are not permitted to look at the material themselves until the court has resolved any potential privilege claims. He said that prosecutors could continue to use evidence it believes is not privileged in court filings, but that they do so “at their own risk.” If they inadvertently use privileged material in their filings, he said, it could lead to consequences for the entire case.

ABC’s story suggests more concerns over the access itself being a Fourth Amendment violation, regardless of whether it was privileged or not. That seems to be why he ordered the government to share — by close of business tomorrow — not just the grand jury transcripts, but the material seized from Dan Richman five years ago, which the government has inexplicably not yet turned over.

But Comey’s attorneys raised separate concerns that by using those materials at all, the government may have violated Comey’s rights — not just by reviewing potentially privileged information, but also by revisiting evidence obtained by warrants that would now be considered stale.

Judge Fitzpatrick appeared to agree with those concerns during Wednesday’s hearing, as he repeatedly pressed Assistant U.S. Attorney Tyler Lemons over what materials the government had reviewed and why the disputes over privilege were not settled during the more than five years that the government had those communications in its possession

Fitzpatrick, citing what he described as “unusual” behavior by the Justice Department and the quickly approaching January trial date, ordered the government to hand over “all grand jury materials” related to its investigations of Comey by Thursday at 5 p.m. ET — an urgent deadline that reflected Fitzpatrick’s concern over the government’s conduct.

The big underlying issue though — the request that first precipitated this proceeding — was their demand for quick review of potentially privileged material that likely dates from the period after Donald Trump fired Jim Comey. DOJ has had this material for years, at least six months of which came when Bill Barr was aggressively pushing this investigation, yet they’ve never asked to breach these privilege claims before.

Which elicited the comment from Fitzpatrick that has made all the coverage, here, from ABC.

“We’re in a bit of a feeling of indict first, investigate second,” Magistrate Judge William Fitzpatrick said in a motions hearing in Alexandria, Virginia.

It’s not dissimilar to what a different Magistrate Judge, André Espionosa, said less than six months ago, when dismissing the charges against Newark Mayor Ras Baraka.

The hasty arrest of Newark Mayor Ras Baraka , followed swiftly by the dismissal of these trespassing charges a mere 13 days later, suggests a worrisome misstep by your Office . An arrest , particularly of a public figure , is not a preliminary investigative tool . It is a severe action, carrying significant reputational and personal consequences, and it should only be undertaken after a thorough , dispassionate evaluation of credible evidence .

It’s precisely that commitment to rigorous investigation and thoughtful prosecution that has 20 characterized the distinguished history of your Office, Mr. Demanovich [the AUSA whom Alina Habba sent in her stead], particularly over the last two decades. The bench and the bar have witnessed in that period, the diligence and care demonstrated by prior U.S. attorneys in New Jersey, whose leadership has consistently upheld the highest standards of prosecutorial ethics and professionalism Their legacy is one of careful deliberate action where charges were brought only after exhaustive evidence gathering and a thorough consideration of all facts That bedrock principle, consistently honored by your predecessors, is the foundation upon which the credibility and effectiveness of your Office rests.

So let this incident serve as an inflection point and a reminder to uphold your solemn oath to the people of this District and to your client, Justice itself, and ensure that every charge brought is the product of rigorous investigation and earned confidence in its merit, mirroring the exemplary conduct that has long defined your Office.

The apparent rush in this case, culminating today in the embarrassing retraction of charges, suggests a failure to adequately investigate, to carefully gather facts, and to thoughtfully consider the implications of your actions before wielding your immense power. Your Office must operate with higher standard than that.

To be sure, I don’t think they were reconsidering charging Comey.

Rather, I suspect they were hoping for a better theory of charges. I suspect they hope to bring follow-on charges to build their fever dream.

But they’ve been caught once again not doing the work of prosecutors.

Update: Holy hell. Per NYT, prosecutors hadn’t even turned over the stuff released in their Opposition to Comey’s vindictive and selective prosecution motion.

The judged grilled one of Ms. Halligan’s deputies, Nathaniel Lemons, over prosecutors’ release of material in recent days, including private text exchanges intended to cast Mr. Richman and Mr. Comey in unflattering light in an otherwise quotidian court filing. He asked whether prosecutors had given Mr. Comey an opportunity to review such material first to challenge their release.

When Mr. Lemons said he had not offered Mr. Comey’s lawyers access to the material, obtained in several search warrants as part of an internal investigation of leaks in the Russia case during the first Trump administration, the judge chided him for placing an “unfair” burden on the defense.

That would undoubtedly be a violation of the discovery order, which required everything material to be turned over by October 13.

Update: The timeline on this gets more damning.

September 22: Lindsey Halligan appointed.

Days before Comey’s indictment: Investigators review the materials anew.

September 25: Miles Starr presents to the grand jury and then files notice of exposure to Attorney-Client material.

October 7: Lemons files notice of appearance, but refuses to tell Comey who the people referred to in indictment are.

October 10: Lemons starts pressuring Comey to access privileged material.

October 13: Lemons files for access to privileged material.

October 15: Lemons finally tells Comey who the people in the indictment are.

October 19: In bid to accelerate access to privileged material, Lemons accuses Patrick Fitzgerald of being part of classified leak — a slanderous attempt to criminalize sharing details of Trump’s misconduct.

November 3: Lemons files response relying on discovery Comey hasn’t yet received.

 

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Tyler Lemons’ Vindictive and Selective Bill of Particulars

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

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

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

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

Lemons establishes the need to include transcripts omitted from the indictment

Start with transcripts. The government motion itself includes:

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

In footnotes to the first,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This passage is triply misleading.

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

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

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

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

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

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

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

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

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

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

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

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

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

Pam: I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.” Then we almost put in a Democrat supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so. Lindsey Halligan is a really good lawyer, and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT

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

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

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

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

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

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

None of these stories match the elements of the offense

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

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

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

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

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

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

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

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

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

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

Mr. Comey: I do not.

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

Speaker 3: There it is.

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

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

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

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

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

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

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

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

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

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

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

No.

Really.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Links

Response unlawful appointment

Response vindictive and selective

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

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

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

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

A. Applicable Law

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

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

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

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

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

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

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

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

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

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

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

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

Let’s lay this out in detail:

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

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

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

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

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

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

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Judge Nachmanoff Punts on Privilege

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

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

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

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

Nachmanoff didn’t do that.

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

At one level, that looks like a punt.

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

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

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

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

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

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

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

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

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

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

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

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Taint

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

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

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

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

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

The unethical dickishness makes much more sense now.

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

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

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

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

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

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

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

Curse you, Pat Fitzgerald!!!

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

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

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

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

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

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

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

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

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

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

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

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

There’s very little fucking around here.

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

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

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

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

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The court filings submitted since Jim Comey’s arraignment have set the stage for several possible prosecutorial disasters.

After loaner AUSA Tyler Lemons made a transparent bid at the arraignment to slow Eastern District of Virginia’s rocket docket with both discovery and the invocation of the CIPA (Classified Information Procedurs Act) process, Judge Michael Nachmanoff,

Meanwhile, Comey noticed his intent to challenge Lindsey Halligan’s appointment as US Attorney, so Judge Nachmanoff can refer the question to Fourth Circuit Chief Judge Albert Diaz, who will pick a District Judge from another District to preside over the challenge. Assuming Judge Diaz responds in timely fashion, Comey will submit that motion on Monday, along with his Selective and Vindictive prosecution claim, the latter of which is likely to be rather, um, illuminating.

There’s no sign, yet, that Halligan’s loaner AUSAs failed to meet Monday’s deadline, though they did file something under seal on Tuesday. If I had to guess, that might be the first bid to hide Trump’s role in the selective prosecution under claims of Executive Privilege, though I also imagine prosecutors may try to explicitly prevent the involvement of Maurene Comey (who is suing on closely related issues) or Troy Edwards (who presumably knows details of the turmoil at EDVA) on Comey’s defense team. Right wing propagandists are hinting that it might be a bid to claim Pat Fitzgerald has a conflict stemming from his past representation of Comey; but the CIPA filings, filed by prosecutors on October 13, are predicated on the assumption “that attorney Patrick Fitzgerald receives his security clearance, or interim clearance, within a reasonable time,” suggesting prosecutors have no complaint about Fitz’ involvement.

But there’s another filing that hints at far more turmoil ahead.

On Monday, after Judge Nachmanoff ordered prosecutors to turn over all discovery that day, prosecutors submitted a motion for a filter protocol. According to the filing, the government seized a whole bunch of computer devices — a hard drive, an iCloud account, an iPhone, and an iPad — from a lawyer in a past investigation, and they want to access it for this investigation.

Evidence in the government’s custody includes PPM because the evidence was obtained from an attorney. Currently, the quarantined evidence includes an image of a computer hard drive, an iCloud download, the backup of an iPhone, and the backup of an iPad (the “quarantined evidence”). The quarantined evidence was obtained through judicial warrants in a previous government investigation. After obtaining the quarantined evidence, and prior to any review, the attorney in question reviewed the quarantined evidence, withheld purported privileged material, and provided a privilege log to the government. However, the government is not aware of any involvement by the Defendant, or other putative privilege holders, in this prior review.

The devices are exceedingly likely to belong to Dan Richman, who is at least reported to be the person whom Comey is accused of authorizing to serve as an anonymous source in the indictment.

Indeed, the possibility that DOJ, under Bill Barr, seized a whole bunch of content from Richman explains something about the 2021 memo closing the investigation into Richman for leaking (which Comey likely received in unredacted form on Monday). One paragraph of the memo describes that Richman told the FBI that Comey had never asked him to talk to the media, followed by a two-paragraph redaction that must describe some reason why the FBI believed that to be false.

It was clear from the memo that the FBI obtained proof of what Richman said to Mike Schmidt, and while Barr tried to go after NYT directly for this investigation, they had limited success, so that evidence would have come from Richman. Plus, the closing memo is pretty clear that Richman was a confirming source for Schmidt (it says that the government has not previously charged people for being a confirming source, though I believe that’s inaccurate), which Richman admitted.

So if all those assumptions are correct, let’s consider what this motion for a filter protocol confesses.

First, prosecutors launched a bid to get access to this information to use at trial on the day that discovery was due, the day after Judge Nachmanoff ordered that all discovery be provided by October 13. They seem really unconcerned about how badly that will piss off Nachmanoff, which seems reckless.

The proposed filter itself is obnoxious in two ways. It proposes a team (which it says does not include EDVA or EDNC prosecutors, but does not address whether it includes prosecutors from WDVA or another of the far-flown parts of DOJ where Kash Patel has parked his witch hunt) will review the data for a set of narrow filter terms.

2 The Filter Team is comprised of Two Assistant United States Attorneys, and their support staff, from a separate federal district from the Eastern District of Virginia and the Eastern District of North Carolina. The Filter Team has a separate reporting and supervisory chain from the Prosecution Team and are not part of the Prosecution Team.

But aside from things explicitly marked privileged, they would get access to everything. Comey would only get a say over stuff triggered by those filter terms.

You can tell how unusual this protocol is for the citations — none of which is from EDVA, and only one of which is from the Fourth Circuit — the loaner AUSAs give to pretend it is not.

Of note, courts in the Fourth Circuit have entered similar protocols to the one proposed by the Filter Team in this case to handle the segregation and disclosure of PPM. See, e.g., United States v. Reifler, No. 1:20-cr-512-1, 2021 WL 2253134 (M.D.N.C. June 2, 2021).

Further, courts in other jurisdictions, including in the Third, Fifth, Sixth, and Eleventh Circuits, among others, have also entered similar protocols to the one proposed here. See, e.g., United States v. Farizani, No. 4:21-cr-62, ECF No. 153 (S.D. Tex. Feb. 16, 2024); United States v. Fletcher, No. 2:21-cr-64-DLB-CJS, 2022 WL 1118042 (E.D. Ky. Mar. 8, 2022); United States v. Siefert, No. 2:21-2-DLB-CJS, 2021 WL 3076940 (E.D. Ky. July 17, 2021); United States v. Salahaldeen, No. 3:20-cr-839, 2021 WL 2549197 (D.N.J. May 7, 2021); United States v. Lloyd and Strong, No. 9:25-cr-80015 (S.D. Fla.), United States v. Martinez and Vazquez, No. 24-cr20343, ECF No. 49 (S.D. Fla. Sep. 24, 2024); United States v. Blackman, No. 23-cr-20271, ECF No. 105 (S.D. Fla. Apr. 3, 2024); United States v. Waxman, No. 21-cr-60253, ECF No. 105 (Aug. 12, 2022).

These cases charged insurance fraud, healthcare fraud, distribution of controlled substances by a doctor, a combination of both fraud and controlled substance abuse, health care fraud, more healthcare fraud, and still more medicare fraud. They’re not only out of district, but inapt to this case.

They hide what prosecutors are probably attempting to do: to get to materials privileged to Richman in which he spoke about Comey.

This is something I predicted prosecutors would try to do in a post and video on the lessons from the Durham investigation. This is an attempt to use this proceeding to get to stuff privileged to Richman that they could use in their conspiracy fever dream.

The other reason this is wildly inappropriate goes to something Nachmanoff seems to be attentive to. As I noted, in his order approving Comey’s preferred protective order, Judge Nachmanoff noted that cases brought by Pat Fitzgerald, Robert Mueller, and under the supervision of Jack Smith did not adopt the punitive standard the Lindsey the Insurance Lawyer’s loaner AUSAs are attempting.

1 The Court observes that protective orders entered in numerous other high-profile false statements cases, within and outside of this judicial district, do not contain such limitations. See, e.g., Protective Order, United States v. McDonnell, et al., ECF 46, No. 3:14-cr-12-JRS (E.D. Va. Feb. 6, 2014); Protective Order, United States v. Kiriakou, ECF 32, No. 1:12-cr-127-LMB (E.D. Va. April 13, 2012); United States v. Libby, ECF 22, No. 1:05-cr-394-RBW (D.D.C. Nov. 23, 2005); Protective Order, United States v. Blagojevich, ECF 67, No. 1:08-cr-888-JBZ (N.D. Ill. April 14, 2009); Protective Order, United States v. Manafort, et al., ECF 46, No. 1:17-cr-201-ABJ (D.D.C. Nov. 15, 2017).

If one were to adopt the attorney-client review standards used in the Trump cases, the attorney in question — Rudy Giuliani, and John Eastman, among others, in the Trump cases, and Richman here — would be involved to speak to their own privilege, a process which created months and months of delay. The loaner AUSAs are pretty transparently trying to find a way around that process.

For now, Comey is adopting a different approach. As prosecutors describe it, Comey plans to challenge the warrant accessing this data in the first place.

First, the defendant has not explicitly objected to the protocol. As the government understands it, the defense prefers to challenge the underlying search warrant first before any review takes place. This two-tiered process is unacceptable in the government’s view because it risks delay.

It makes sense. The closing document in the investigation into Richman found that there was not sufficient evidence to charge either Comey or Richman, including for the false statements with which Comey has now been charged.

The investigation has not yielded sufficient evidence to criminally charge any person, including Comey or Richman, with making false statements or with the substantive offenses under investigation.

Unlike grand juries (where we can assume Lindsey the Insurance Lawyer neglected to tell grand jurors about all the conclusions there was not evidence to charge this), affiants for warrants are required to tell judges of all material information, such as that prosecutors already decided there’s no crime here. This is what the entire stink about the Carter Page FISA warrants was about. And the only thing that has changed since FBI presumably obtained warrants for Richman’s devices in 2019 is that Richman testified, twice, that Comey didn’t order him to leak to the press, and also that three sets of prosecutors (including those who reviewed the material in 2019) concluded there was no crime they could charge.

So if whoever got a new warrant to access this material for use in this investigation failed to disclose the prior prosecutorial decisions, that would make for an easy Fourth Amendment challenge. (I would be unsurprised if agents in WDVA already accessed this material, using precisely this protocol, which is one reason I find the language excluding EDVA and EDNC from the filter team but not identifying who would conduct it suspect.)

But understand what else is going on. The loaner prosecutors say they need to use an inapt filter process that treats both Comey and Richman like fraudsters because allowing them to participate in the process — or even pausing for a Fourth Amendment challenge — “risks delay.” But this is EDVA, home of the rocket docket, and in EDVA, you don’t wait until after you’ve indicted to obtain material you think might be helpful to your case.

Meanwhile, the clock is ticking.

As far as I understand the posture of this, unless Judge Nachmanoff orders differently, Comey will not have to respond to the October 13 request for two weeks — October 27, with a reply a week later, after all of Comey’s initial pretrial motions are submitted (he might file a Fourth Amendment challenge for the second deadline, October 30, or just file it on October 26).

Nachmanoff seems unimpressed by either this motion or the sealed filing.

Which is to say, unless something changes, this purported filter process wouldn’t even start for another month, resulting in the provision of any relevant materials to Comey months after the discovery deadline.

If this is a bid to access this material for this trial, it will likely fail. And, because this is EDVA, if that’s what prosecutors are trying, it may not work as well for investigators (including Jack Eckenrode, from John Durham’s team) as it did during the Michael Sussmann trial.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

6) Finally, they spelled North Carolina wrong.

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

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

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

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

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

1 The Court observes that protective orders entered in numerous other high-profile false statements cases, within and outside of this judicial district, do not contain such limitations. See, e.g., Protective Order, United States v. McDonnell, et al., ECF 46, No. 3:14-cr-12-JRS (E.D. Va. Feb. 6, 2014); Protective Order, United States v. Kiriakou, ECF 32, No. 1:12-cr-127-LMB (E.D. Va. April 13, 2012); United States v. Libby, ECF 22, No. 1:05-cr-394-RBW (D.D.C. Nov. 23, 2005); Protective Order, United States v. Blagojevich, ECF 67, No. 1:08-cr-888-JBZ (N.D. Ill. April 14, 2009); Protective Order, United States v. Manafort, et al., ECF 46, No. 1:17-cr-201-ABJ (D.D.C. Nov. 15, 2017).

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

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

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

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Prosecutors Sucking Lemons in Their Vindictive Prosecution of Jim Comey

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In this post, I noted a paragraph of a recent ABC story that had escaped much notice: one reason prosecutors didn’t think they would succeed in prosecuting Jim Comey was because there would be too much discovery.

Prosecutors further expressed concerns about the department’s ability to take the case to trial quickly due to problems identifying all the relevant materials that would need to be handed over to Comey’s lawyers, sources said.

I speculated that one reason the prosecutors borrowed from Raleigh — Tyler Lemons and Gabriel Diaz — claimed there would be extensive classified information was to stall for time.

Such efforts are already failing. At the arraignment, Judge Michael Nachmanoff ordered the two sides to come up with a discovery order by Friday or submit their competing sides Monday. Yesterday, Comey’s lawyers submitted this filing, explaining that they had immediately signed the standard discovery order, but had yet to receive a signed copy back. As described, the two sides disagreed about one issue, what pretrial motion date would govern: the deadline for his Vindictive and Selective Prosecution claim (so five business days before October 20 — which is Monday), or the one ten days later for his other claims (October 23).

In the course of the parties’ meet and confer, the government sent the defense the standard discovery order attached and the defense signed it with no changes to the government’s proposal and returned it for government signatures on Thursday afternoon, October 9, 2025. To-date, however, the government has not returned a signed copy. While the parties agree to the terms of the standard discovery order, the parties disagree as to an interpretation of one term of the order—specifically, which of the two pretrial motions deadlines prompts the government’s Rule 16(a) production described in paragraph 1, requiring the government to produce certain discovery “no later than 5 business days before the deadline for pretrial motions.” See Exhibit 1 at 1 (emphasis added).

Mr. Comey asserts that the first set of pretrial motions due on October 20, 2025, which the Court ordered at the arraignment hearing, demands that discovery be produced on Monday, October 13, 2025. Naturally, at least some of this discovery will inform the bases for the vindictive and selective prosecution motion that is to be filed on October 20, 2025. As of the date of this filing, the defense has received one page of discovery. The government contends that the term “deadline for pretrial motions” refers to the deadline for the second tranche of pretrial motions, October 30, 2025.

To be able to fully articulate all bases for the first tranche of pretrial motions including the vindictive and selective nature of this case; to be able to effectively defend Mr. Comey; and because it is the plain language of the standard discovery order, Mr. Comey respectfully requests that the Court enter the additional proposed order making clear that “the deadline for pretrial motions” referenced in the standard discovery order is the first pretrial motions deadline of October 20, 2025. [my emphasis]

The part of this that is unmanageable is the requirement that prosecutors provide any statements the former FBI Director made about the matters at issue, which must be epic.

ORDERED that, pursuant to Fed. R. Crim. P. 16(a), no later than 5 business days before the deadline for pretrial motions, the government shall provide to the defense or make available for inspection and copying materials listed below that are in the possession of the U.S. Attorney’s Office for the Eastern District of Virginia.

[snip]

any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the government, the existence ofwhich is known, or by the exercise of due diligence may become known

But the real reason prosecutors attempted this ploy is the requirement that prosecutors provide everything material to Comey’s defense (to say nothing of Brady obligations).

3. The government shall permit the defendant to inspect and copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of his defense

The rest of the ABC piece makes clear some of what that will include:

There’s Dan Richman’s testimony that, contrary to the claim in the charges, Comey had specifically ordered him not to serve as an anonymous source for the press.

Daniel Richman — a law professor who prosecutors allege Comey authorized to leak information to the press — told investigators that the former FBI director instructed him not to engage with the media on at least two occasions and unequivocally said Comey never authorized him to provide information to a reporter anonymously ahead of the 2016 election, the sources said.

[snip]

When prosecutors met with Richman in September, he told them that he never served as an anonymous source for Comey or acted at Comey’s direction while he was FBI director, sources familiar with his interview told ABC News. In at least two cases when Richman asked if he should speak with the press, Comey advised him not to do so, sources said.

As an earlier ABC story reported, it will also include John Durham’s testimony that, in four years of trying, he never found evidence that Jim Comey lied.

John Durham, the former special counsel who spent nearly four years examining the origins of the FBI investigation into President Donald Trump’s 2016 presidential campaign and its alleged ties to Russia, told federal prosecutors investigating James Comey that he was unable to uncover evidence that would support false statements or obstruction charges against the former FBI director, sources familiar with the matter told ABC News.

And it’ll also include the testimony of other prosecutors who spent years investigating Comey that they also did not find any evidence he committed a crime.

The prosecutors also met with a team of lawyers at the U.S. Attorney’s Office in Washington, D.C., who had investigated Comey for years — including calling him to testify before a grand jury in 2021 — but were unable to identify any chargeable offenses committed by Comey, sources familiar with the meeting said.

It might even include the declination recommendation submitted to Erik Siebert just days before Trump started demanding prosecutions anyway.

Whether or not Comey’s Vindictive and Selective Prosecution succeeds (as Lawfare has laid out, the legal standard for those is a bit inapt for his case), this testimony would nevertheless provide an opportunity to lay out proof of something that right wingers and NYT reporters continue to deny: Donald Trump did investigate precisely the same people he demands be prosecuted now.

For years.

But some very determined prosecutors concluded that there was no probable cause to charge him.

Without waiting to hear from prosecutors, Nachmanoff filed the discovery order — signed by just Comey’s attorneys — to the docket, and issued an order stating that the earlier deadline applies.

The first pretrial motions deadline in this matter is October 20, 2025. This is the pretrial motions deadline to which the discovery order refers and the date that prompts the government’s Rule 16(a) discovery production.

By Monday, Lemons and Diaz are going to have to decide how badly they want to risk their own law license.

They could move to dismiss the prosecution, the ethical thing to do, but one that will get them fired. And even then, now there’s a matter before Nachmanoff that could force the disclosure of all that anyway.

They could admit that Lindsey the Insurance Lawyer was not lawfully appointed (the one piece of discovery they did provide is likely her appointment order, which will be enough to prove that she was not lawfully appointed), and therefore the indictment is invalid.

They could turn over evidence to Jim Comey that shows prosecutors knew there was no probable cause to charge him but did anyway.

Or they could stall, putting their own careers at risk in a different way.

This dilemma makes it clear why Comey was all smiles last week. It makes it clear why Pat Fitzgerald, and not Lemons and Diaz, appeared to be the one directing a prosecution Wednesday.

It even makes his two-phase approach clear. Comey’s case is inapt to existing Vindictive and Selective Prosecution precedents. But what Fitzgerald has done is force an immediate disclosure of this stuff, which he can then use to make arguments that effectively put Lindsey Halligan’s — and through her, Trump’s — behavior on trial, what Fitz described as “a grand jury abuse motion, and outrageous government conduct motion.”

Unless prosecutors find a way to make this problem go away, in nine days, we’ll get details (in the Vindictive and Selective Prosecution motion) of how badly Trump has tried to prosecute Jim Comey, and how those efforts failed, until the moment he unlawfully installed his own defense attorney as US Attorney at EDVA.

Update: The government has submitted a fairly contemptuous motion (because it does not recognize Nachmanoff’s order), partly hiding behind protective orders.

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