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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

The privileged material was prohibited under the previous warrants

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

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

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

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

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

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

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

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

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

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

[snip]

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

Here’s where things get interesting, though.

The Comey memos are unresponsive to this investigation

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

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

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

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

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

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

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

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As Spacemen Stalk Jim Comey, Loaner AUSA Tyler Lemons Doxed Him

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On October 20, in response to a Gateway Pundit article reporting on Judge Michael Nachmanoff’s decision not to accelerate the government’s bid for a privilege review, a guy writing under the moniker Spaceman Chuck claimed “we already have a team on” making sure that Comey “go[es] down” if he is not convicted.

A month earlier, in response to John Brennan’s criticism of the Comey indictment, Spaceman Chuck commented that their safety is not guaranteed.

As CourtWatch reported, Spaceman Chuck, AKA Greg Formicone, was arrested Wednesday for these threats, as well as others targeting Letitia James (also in response to a Judge’s decision) and Hunter Biden.

That very same day, in a hearing regarding the very same topic as that Gateway Pundit article — that is, the government’s bid to breach Jim Comey’s privileged communications — there was an exchange that hinted at how Loaner AUSA Tyler Lemons had made it easier for nutjobs like Spaceman Chuck.

Magistrate Judge William Fitzpatrick started the hearing by discussing warrants used to seize material from Dan Richman over five years ago. He asked whether the original warrants could be unsealed.

Rebekah Donaleski, representing Comey, asked to be able to propose redactions before the warrants are unsealed. She explained they were primarily hoping to seal things like email addresses.

THE COURT: Are your redactions simply limited to PII information or are they substantive in nature?

MS. DONALESKI: We expect that it will be primarily PII information or things of that nature, so email addresses, ID numbers, things —

But those kinds of things, Fitzpatrick noted, are already required to be sealed under court rules.

THE COURT: Anything like that, under court rules, are already going to be sealed. So anything having to do with emails, phone numbers, anything like that is never going to be unsealed with respect to this. But with respect to any of the substantive information, the more factual information, do you still want a chance to review that?

In a follow-up, Donaleski suggested that “the government has a different position” on whether those things are PII.

MS. DONALESKI: We would appreciate that. And, Your Honor, with respect to the PII, I understand the government has a different position on what is PII, so I appreciate Your Honor’s view that email addresses and phone numbers should be redacted as PII.

Lemons responded by suggesting that phone numbers and email addresses are not PII under Local Rules (which will surely go over well with Fitzpatrick).

There was basically a discussion between Defense and the government as exactly what is required to be redact — what is considered PII under Local Rule 47 and then the Federal Rule of Criminal Procedure 49, and telephone numbers and email addresses are not considered that, but per the Defense’s request, when they requested us to redact that information, we did make that redaction, and we think that is the appropriate way to proceed going forward to make sure both parties are having a collegial conversation and redacting what needs to be redacted; and if there are any lingering issues that remain after that, it’s something appropriately brought to the Court prior to anything being filed on the docket.

Neither Donaleski nor Lemons mentioned what this discussion about PII referenced. But it is undoubtedly a reference to the way Lemons released exhibits in support of a filing earlier that week, leaving email addresses and phone numbers unredacted. Even after the first round of redactions, a phone number for Comey remained unredacted (it has since been redacted), though well before Comey and Richman’s PII was redacted, prosecutors had redacted an FBI email.

I’m fairly certain the threats from Forticone were nowhere near the first credible threats targeting Comey. Yet instead of minimizing such a threat, Lemons fueled it.

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Tyler Lemons Caught Jack Eckenrode Committing a Capstone Crime

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Back in July, in the wake of Trump’s struggles to distract from his own Epstein cover-up and as if in response to Tulsi Gabbard’s wild rants about the Intelligence Community Assessment, the FBI Director posted this tweet, RTing an inflammatory tweet from a propagandist who has been central to Kash’s disinformation about the Russian investigation.

Buried in a back room at the FBI, Kash claimed, was what John Solomon called “the smoking gun evidence … [i]f it is authenticated.”

Days later, Kash referenced these files again, explicitly tying his campaign to supplant the Steele dossier for the actual Russian investigation with his role, as FBI Director, now focusing on “uncovered burn bags/room filled with hidden Russia Gate files, including the Durham annex.”

It took just a matter of days for me and Charlie Savage to figure out that four years earlier, John Durham had not just not authenticated John Solomon’s “smoking gun,” but he had in fact concluded that the very email Solomon called a smoking gun was instead, “a composite of several emails.”

That is — a fabrication.

After the release of the Durham annex revealed that Kash — and John Durham and John Durham’s lead investigator Jack Eckenrode, along with John Ratcliffe — had been chasing Russian disinformation, Kash got even more desperate, clinging to Sean Davis propaganda in an attempt to rebut a plain reading of the Durham annex.

The FBI Director just endorsed the ignorant ravings of a long-discredited propagandist, Sean Davis, attempting to debunk the NYT’s factual reporting that the letters on which the entire conspiracy the frothy right has been chasing for years “were probably manufactured.”

Kash needs Davis to be right, because if he’s not, it exposes Kash as someone too stupid to understand he has been chasing Russian disinformation for years. Kash needs Davis to be right, because Kash just declassified this annex thinking it would help his boss distract from the Epstein scandal that him himself stoked, when in fact it shows that Russian spies have been laughing their ass off at everyone involved for nine years (which I’ll come back to).

The truth is, Kash has been chasing documents as self-evidently problematic as the Steele dossier all that time.

He has proven an easy mark.

That’s what we saw in real time. We also saw in the classified annex both that Durham, along with his chief investigator, Jack Eckenrode, tried to hide the evidence that they had been chasing Russian disinformation for years — indeed, continued to chase Russian disinformation for two years after obtaining confirmation they were doing that. Then Tulsi Gabbard and Chuck Grassley tried to hide that Durham had tried to hide that.

It became clear that John Durham and his lead investigator Jack Eckenrode had committed the very crime that Durham claimed he was investigating when he chased Russian disinformation for four years, which he described this way:

(i) knew the Clinton campaign intended to falsely accuse its opponent with specific information or allegations, (ii) intentionally disregarded a particular civil right of a particular person (such as the right to be free of unreasonable searches or seizures), and (iii) then intentionally aided that effort by taking investigative steps based on those allegations while knowing that they were false.

From the moment John Durham and his lead investigator Jack Eckenrode persisted in falsely accusing Hillary of framing Donald Trump and used that false accusation to take investigative steps like obtaining warrants, they were (in their model) conspiring against rights under 18 USC 241.

18 USC 241 happens to be the crime that the frothers claim they are pursuing against Comey and everyone else right now.

About a month after Kash first rejoiced about the opportunity to commit the crime Durham had chased, we learned that Jack Eckenrode — shockingly!! — had been invited back to commit the same crime some more. NYT since updated on how, little more than a month after Todd Gilbert was confirmed as US Attorney in WDVA and asked to oversee this investigation, he left under pressure.

That’s background to these two exhibits that prosecutors included in the government’s response to Comey’s vindictive prosecution motion.

Start with the opening memo for an investigation into whether someone deliberately put a bunch of documents in burn bags but … didn’t burn them, the precipitating event that Kash boasted about on July 31. In fact, those burn bags were discovered in April, and they were discovered in FBI Headquarters, not WDVA, where Kash and Bondi stashed the investigation. And the likely explanation for the documents is that senior FBI people were clearing out their offices to make way for … Kash Patel.

On or about April 15, 2025, the Director’s Advisory Team was informed of the unusual discovery of highly classified and sensitive documents found inside five “burn bags” located in Room 9582, a certified Sensitive Compartmented Information Facility (SCIF) at the FBI Headquarters building in Washington, DC.

A cursory inventory of the 9582 SCIF revealed the existence of classified documents, including documents believed to be official records, inside “burn bags” which appeared to have been placed in the SCIF around the timeframe of the 2025 presidential inauguration – Friday, January 17, 2025 through Wednesday, January 22, 2025. A brief review of the contents of the “burn bags” revealed that some of the documents left behind may have come from a collection of records held by certain unidentified senior government officials at FBI Headquarters.

What really set Kash off, it seems clear, is that — seemingly amid a bunch of files relating to the Special Counsel investigations that happened during the Biden Administration — was the document at the heart of Durham’s criminal investigation building on Russian disinformation, a document potentially referring to the fabrications Russian spies made.

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. [my emphasis]

Now, there are already several flashing lights here. 🚨🚨🚨 [Sorry Rayne!]

You cannot have Jack Eckenrode anywhere near the criminal investigation into a document he chased for years. He has more incentive to hide the Durham annex showing that he committed the very crime he was investigating than Comey (or anyone close to him) has to hide the CIOL. In any case, this still seems to fall well short of proof that the FBI actually received it. This opening memo describes that the people who are supposed to catalog such things did not, and if they found it after the fact, it would raise real questions if Eckenrode planted it.

Worse still, the opening memo for this investigation misrepresents Comey’s testimony from the hearing.

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.

[snip]

Senator Graham: Did you have a duty to look at any allegations regarding Clinton in Russia?

Mr. Comey: I don’t know what you mean. Senator Graham: Well, you say you had a duty to look at allegations about the Trump campaign being involved with the Russians. You’ve got a letter now from Radcliffe saying that there was a, they intercepted information about an effort in July where Hillary Clinton approved an effort to link Trump to Russia or the mob. Did you have an investigation look and see if whether that was true?

Mr. Comey: I can’t answer that. I’ve read Mr. Radcliffe’s letter, which frankly I have trouble understanding.

That’s true, in part, because Graham misrepresented what the CIOL was. As it explains, the memo only served to provide the kinds of information that the CIA was finding in SVR documents obtained from the Dutch. It was not a request for the FBI to conduct an invsetigation, but right wingers have treated it as such for years.

The redaction in the pertinent paragraph, which seems to be a reference to Guccifer 2.0, likely obscures the entire meaning of the paragraph, to say nothing of the redaction of the other paragraphs. More importantly, there was no discussion at the hearing of what Comey would have understood this to belong to: the larger set of SVR documents that the FBI had deemed objectively false much earlier in the year.

In other words, that reference in the opening document shows that this entire investigation was predicated on a false claim about Comey — it represents Eckenrode’s false belief about Comey, not the actual transcript (remember, Loaner AUSA Tyler Lemons hid this transcript as an exhibit in his response to Comey’s selective prosecution bid).

And the Jim Comey notes that Lemons insinuates undercut Comey’s claims about receiving the CIOL on September 7, 2016 only serve to underscore this point.

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).

These notes are more consistent with the SVR files being disinformation, rather than the truth right wingers have adopted it as.

More importantly, there’s no reason for Comey to be briefed (possibly by John Brennan) on a topic on September 26 if he received information about it 19 days earlier.

That is, these notes appear to be Comey writing down the reference, understanding it to be part of an attack on Hillary, weeks after Republicans want to catch him receiving a memo.

The part about prosecutors and FBI agents reading these notes in the least sensical way possible is not a crime.

What is a crime, though, is using Russian disinformation you know to be Russian disinformation (and Comey appears to have believed was disinformation) to obtain a criminal indictment.

And it appears that Lindsey Halligan tried to do that — but got no-billed.

Further, according to the transcript from the hearing on Wednesday, Comey’s team read Tyler Lemons’ response to Comey’s vindictive prosecution claim the same way I did:

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).

On Wednesday, Pat Fitzgerald expressed serious concern that “the government is expanding its case, we believe, to include the conduct that was no true billed in Count One as part of its proof of Count Two.”

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

As I’ve said, this is the founding document of their conspiracy theories.

On Wednesday, Lemons didn’t raise an objection when Magistrate Judge William Fitzpatrick first said he was going to order DOJ to turn over grand jury transcripts, suggesting Lemons may have no fear Miles Starr presented privileged information to the jury.

By the end of day yesterday, he did have an objection. Michael Nachmanoff has bumped the whole grand jury question back to Fitzpatrick, so I expect Patrick Fitz (sorry, bad joke!) will get to test this theory shortly.

But that — relying on a no-billed charge for the obstruction charge — is not the only problem with chasing the Clinton Plan disinformation that John Durham debunked.

The far graver problem is it means Miles Starr is a witness to, if not a co-conspirator to, Jack Eckenrode (and FBI Director Kash Patel) committing a crime, precisely the crime they’re chasing.

Four years ago, Jack Eckenrode concluded this stuff was a Russian fabrication, the very thing they claim about the Steele dossier.

And then, Jack Eckenrode got an indictment for it anyway.

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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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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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