Taint

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

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

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

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

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

The unethical dickishness makes much more sense now.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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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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