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

/19 Comments/in /by

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.

Share this entry

Lindsey the Insurance Lawyer’s Disappearing Agreement to a Litigation Hold

/38 Comments/in , /by

I was disappointed, in the way we here in the peanut gallery sometimes are, that Tish James had to specifically rebut the silly things that Lindsey Halligan’s loaner AUSA, Roger Keller, claimed to try to excuse Lindsey’s stalking of Anna Bower.

Attorney General James’ original request asked Judge Jamal Walker to order the government to do three things:

  1. Abstain from further extrajudicial statements like Lindsey’s Signal stalking of Bower
  2. Follow rules and laws requiring prosecutors (and Federal employees generally) to retain their communications
  3. Create and maintain a log of all contact between any government attorney or agent on this case and any member of the news media

As Lawfare’s excellent trial dispatch from Molly Roberts described, when initially presented with this question, loaner AUSA Keller — “a civil litigation lawyer by training,” Roberts helpfully noted — got hung up on a contact log tracking not just with the reporters Lindsey the Insurance Lawyer spoke to, but also with whom others (this is implicit, but let me make it more obvious) like Eagle Ed Martin did.

Keller responded to this request, that prosecutors follow the rules, by demanding that the defense follow the same rules … which is not how it works, both Abbe Lowell and Judge Walker reportedly responded.

The next motion invites a bit more controversy, or at least confusion. James also filed a motion prior to the arraignment asking the court to order the government to follow rules preventing disclosure of investigative and case materials, as well as to refrain from extrajudicial statements concerning the case to the press and public. This motion was prompted in part by an Oct. 20 article published inLawfare by my colleague, Senior Editor Anna Bower, detailing texts sent to her by Halligan in which Halligan criticizes Bower’s tweets about New York Times coverage of grand jury testimony in the case.

This violated, the filing says, Rule 6(e) of the Federal Rules of Criminal Procedure. It argues that the exchange with Bower and the other instances of apparent disclosure it describes—including pre-indictment reports that prosecutors intended to bring charges—also violate various rules, regulations, and ethical obligations. The motion doesn’t ask for a finding to that effect, only for an order to prevent such conduct in the future.

The judge, mentioning only “a journalist” and “an article published,” notes these oddities of the filing. Anyone hoping for a television-ready showdown in which the defense demands the prosecution be held in contempt is quickly disappointed: Judge Walker has interpreted the filing correctly, confirms Lowell.

The judge determines that leaves the prosecution three options: oppose the motion in its entirety; don’t oppose it at all; or oppose the proposed relief. The Eastern District prosecutors would have to preserve all documents relevant to the trial (a litigation hold) as well as create a log of all contact between its attorneys or agents and the media. The litigation hold doesn’t bother Keller. But he expresses reservations about the log, mentioning that “the defendant is also active on the Internet.” Specifically, he takes issue with her tweeting that she is innocent.

The judge, understandably, appears perplexed. He remarks that it’s unclear what Keller is asking. And it is: A public tweet from James in which she says “I am not fearful, I am fearless” has little to do with contact between her attorneys and the media. The misunderstanding only becomes greater when Keller elaborates that any log requirement for the government should also be a requirement for the defendant, and should cover “statements of innocence before the press.”

Does he mean that James should have to keep a record of any proclamations of her intention to fight the charges against her? Or does he mean she shouldn’t be allowed to make them at all?

Keller seems to be suggesting that the restrictions on the defendant’s public speech should mirror those placed on the prosecution. But this is not how these things work. Prosecutors have unique obligations not placed on defendants, who have First Amendment rights to protest their innocence.

Judge Walker delicately instructs Keller—a civil litigation lawyer by training, as it turns out—to take some time to think about the matter and get back to him. Lowell, for his part, declares that the rules to which government lawyers are held aren’t the same ones that apply to a defendant.

“The court certainly understands the requirements,” responds the judge. It is a little less certain that the prosecutor does. [my emphasis]

Now, when I first read Roberts’ dispatch, I honestly thought Keller’s confusion stemmed from that detail, “a civil litigation lawyer by training.” He just doesn’t know what he’s doing.

But when I started writing an abandoned post on his response, I came to believe he — like Lindsey the Insurance Lawyer — is mostly performing for a one man audience. To understand why I think that, check out how loaner AUSA Keller spends a 17¶¶ response:

  1. Lindsey the Insurance Lawyer and loaner AUSA Keller ask that Walker not impose unilateral requirements to preserve all communications and keep a log [my emphasis]
  2. Background: a grand jury indicted the Defendant
  3. Walker should not impose unilateral requirements to preserve all communications and keep a log and also, US v. Trump! (citing the DC Circuit opinion partly upholding the gag on Trump), because Lindsey the Insurance Lawyer had to protect her client [my emphasis]
  4. Here’s a citation that’s totally inapt but which will allow me to argue Tish James has to shut her yap
  5. If the government has to “preserve all communications with any media person” and also keep a log of those contacts, “the unstated threat that she – at some future point in time – may engage in a ‘gotcha’ game where she brings a sanctions motion” may “chill all Government/media interaction” [my bold, italics original]
  6. “There is no Court-imposed requirement that the Government preserves the records,” but can you imagine if a log of all communications means “all communications”?
  7. If we have to follow the rules, Tish James has to follow rules for prosecutors too (citing US v Trump again)
  8. “Defendant’s right to a fair trial does not give [her] the right to insist upon the opposite of that right – that is a trial prejudiced in [her] favor,” citing US v. Trump again
  9. Because she’s a lawyer, Attorney General James has to adhere to NY rules of professional conduct even if Lindsey the Insurance Lawyer refuses to adhere to any rules of professional conduct
  10. After her arraignment, James said she “will not bow” and there have to be rules against that!
  11. Lindsey the Insurance Lawyer covertly bullying a journalist on disappearing messages is nowhere near as bad as Tish James saying “I will not bow” on a telly that Donald Trump can see!
  12. Lindsey the Insurance Lawyer was just protecting her client — which client I will decline to name — “from substantial undue prejudice”
  13. Grand jury secrecy is no big deal
  14. Lindsey the Insurance Lawyer didn’t explicitly reveal what went on in the grand jury
  15. Lindsey the Insurance Lawyer was merely — and heroically — “protect[ing] her client from unfair prejudice resulting from reporting half-truths”
  16. I’m going to distract from the way Bower caught Lindsey the Insurance Lawyer pretending “thousand(s)” of dollars was not just two thousand
  17. You should tell Tish to shut her yap!

I admit, the first time I read this filing, I read in terms of obvious bullshit to rebut, like I imagine lawyers do.

But when you lay it out like this, paragraph by paragraph, the pressing question becomes whether these people — not just Lindsey the Insurance Lawyer, Donald Trump’s defense attorney, but also loaner AUSA Keller — think Donald Trump, and not the US of A, are their client, a client demanding that his minions ensure that Tish James doesn’t become a rock star because of this prosecution.

Because otherwise, why demand that Tish James bow down? Why cite US v. Trump so prominently?

James addressed both these questions. She asked, Who exactly do these people think their client is?

Third, the government’s assertion that Ms. Halligan was only trying to protect “her client” raises the question of who she believes “her client” to be. Her “client” is neither the President, nor the Attorney General, nor the Administration, nor even her Office. It is the United States, as the case caption makes clear, and “[t]he United States wins its point whenever justice is done its citizens in the courts.”2 The point remains true regardless of whether the outcome is the one that the government favors. “Justice is done” when its “citizens in the courts” receive a fair trial. And in any event, a defendant’s fair trial rights decidedly trump any so-called “unfair prejudice” to the government’s case from public reporting. Courts have held that extrajudicial statements and comments by attorneys may be restricted to protect a defendant’s fair trial rights and the integrity of judicial proceedings—which override any desire by government prosecutors to “attempt to protect [Ms. Halligan’s] client from unfair prejudice.” Opp. at 6. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 361 (1966); Gentile v. State Bar of Nevada, 501 U.S. 1030, 1066 (1991).

2 DOJ, Remarks as Delivered by Attorney General Merrick B. Garland, https://www.justice.gov/archives/opa/speech/attorney-general-merrick-b-garland-deliversremarks-office-access-justices-gideon (Mar. 17, 2023).

The insistence that “fair trial rights decidedly trump any so-called ‘unfair prejudice'” is, I hope, an intentional double entendre.

James’ citation for the quote, “[t]he United States wins its point whenever justice is done its citizens in the courts,” is more subtle. The footnote cites this speech by Merrick Garland, a tribute to public defenders and defense attorneys generally, in which he emphasized the import of rule of law.

It reaffirmed that the law protects all of us – the poor as well as the rich, the powerless as well as the powerful.

In so doing, it reaffirmed this country’s commitment to the Rule of Law.

And trust in the Rule of Law is what holds American democracy together.

But the words, “[t]he United States wins its point whenever justice is done its citizens in the courts,” are not Garland’s words (though that was not the only speech where he used them). They were spoken by Willliam Taft’s Solicitor General, Frederick Lehmann, and they are inscribed on the building at DOJ. Judge Walker (a former AUSA) will presumably recognize that; Keller the loaner AUSA should: but Lindsey the Insurance Lawyer may see only a citation to Garland and worry about her boss — her client — again.

Then there’s James’s treatment of Keller the loaner AUSA’s inapt reliance on US v. Trump. She uses that to recall Trump’s misconduct as a defendant, something she knows well.

The government’s reliance on United States v. Trump, 88 F.4th 990 (D.C. Cir. 2023)—a case affirming a limited gag order placed on then-defendant Donald Trump in response to his public statements threatening witnesses, participants, and the judiciary during litigation—to defend Ms. Halligan’s interactions with the reporter is entirely misguided. Opp. at 3–4. Trump is relevant only to the extent that it proves the relative strength of a criminal defendant’s First Amendment rights and the extraordinary circumstances required to justify any burden on such rights. See id. (“[A] criminal defendant—who is presumed to be innocent—may very well have a greater constitutional claim than other trial participants to criticize and speak out against the prosecution and the criminal trial process that seek to take away his liberty.”). The Trump court set out facts justifying the order in vigorous detail, including a timeline of President Trump’s extensive attacks on witnesses, court officials, judges, law clerks, and other government personnel. See id. at 1010. It also catalogued the violent and threatening responses resulting from President Trump’s statements. See id. at 1011.

Even under those extraordinary circumstances, the court still found that “Mr. Trump [was] free to make statements criticizing the current administration, the Department of Justice, and the Special Counsel, as well as statements that this prosecution is politically motivated or that he [was] innocent of the charges against him.” Id. at 1028. Attorney General James’ speech, including following her initial appearance, cannot be reasonably compared to the statements that led to the United States v. Trump gag order, and regardless, would have been outside of its reach.

And James invoked Trump’s “almost weekly … disparaging comments against her” to suggest the government won’t win a war of the lesser wrong.

The comparison that the government now offers is to a public statement by a defendant who has faced almost weekly assertions by the President, or those carrying out his bidding, calling for her prosecution and conviction or making other disparaging comments against her. The government’s argument appears to be that “two wrongs don’t make a right.” But the defendant has not contravened the cited rules; the government has. The relief requested in the Motion is intended only to ensure that does not happen again and that, if it does, the government does not delete the evidence of its wrongdoing. That relief should be unobjectionable to the government.

The James prosecution is not functionally necessary for Donald Trump’s witch hunt — it is discrete punishment for someone who humiliated Donald Trump by treating him as a garden variety fraudster. That may be why Lindsey the Insurance Lawyer only got one loaner AUSA for this case, as compared to two overt ones for the Comey case (plus at least one more guy writing the filings), which is one part of the larger project. So maybe this is all about the posturing, an attempt to ensure that nothing about this prosecution backfires on the “client.”

But the focus on Trump — the need to respond to the totally inapt reliance on US v. Tump — distracted from something potentially more important.

Go back to bullet 5 again. Here’s that full quote:

Essentially, Defendant attempts to chill all Government/media interaction with the unstated threat that she – at some future point in time – may engage in a “gotcha” game where she brings a sanctions motion because the Government inadvertently failed to maintain a document or include a contact in its log.

This is an astonishing statement, one James addresses this way:

The opposition’s hyperbolic claim that the Motion seeks something like a gag order, Opp. at 3, fares no better. Government counsel and their agents have an ongoing obligation to refrain from certain types of extrajudicial statements and disclosures that may jeopardize a fair trial in this case. James Mot. at Sec. I. The defense is not asking the Court to “chill” all the government’s interaction with the media; it concedes that many statements that “a reasonable person would expect to be further disseminated by any means of public communications” are permissible.1 James Mot. at 9 (quoting Loc. Crim. R. 57.1(C)). Rather, the defense is seeking the Court’s assistance in assuring that the government adheres to the rules it has set for itself.

1 Another red herring, based on nothing in the Motion, is the government’s suggestion that Attorney General James is “attempt[ing] to chill all Government/media interaction” to later play “a ‘gotcha’ game” over the government’s failure to maintain a document or include a contact in its log. Opp. at 3. Following long-standing rules on extrajudicial statements is not “gotcha,” it is basic to the government’s obligation to protect fair trials.

These are prosecutors, wailing about being asked to retain documents! The government complains about being asked to preserve documents five times, plus the requirement that it maintain documents in its chill comment. And loaner AUSA Keller makes those complaints after having agreed to a litigation hold at the arraignment, something James notes in the first paragraph.

[A]s government counsel acknowledged at the October 24, 2025, initial appearance and arraignment, the government agreed to comply with the litigation hold request made in the Motion to prevent any further deletions and to preserve any other extrajudicial communications that may have been made.

Loaner AUSA Keller outright states that it would “chill” … something if prosecutors are asked to retain all their documents, something that normal prosecutors do as a matter of course, at least until a matter is concluded. This is like Trump demanding that he get to wipe every phone involved in this prosecution on a daily basis, after spending years misrepresenting what happened after Mueller team members left that team.

It’s not a “gotcha” if, as a prosecutor, you start deleting documents willy nilly. It is a real violation. It should be. Especially in a case like this one where the President accidentally issues orders on his social media site intended to be private. Is there a whole stash of Truth Social DMs about this case that have been deleted?

So I get the point of replying to the issues loaner AUSA Keller raised, including the inapt nod to the indignities that Donald Trump suffered after he got indicted and then threatened to kill witnesses (including the witness he almost got killed on January 6).

But that repeated complaint about merely retaining all your communications, particularly coming after already orally agreeing to do so, has me wondering if something much bigger than Lindsey the Insurance Lawyer’s stalking problem is going on.

Update: Judge Walker has issued the litigation hold but not required prosecutors to log their contact with journalists. He even extended his admonition on complying with Local Rules to James’ legal team as well as prosecutors.

The Court also ORDERS all counsel to comply with Local Rule 57.1, whichprohibits any “lawyer, law firm, or law enforcement personnel associated with the prosecution or defense” from making or authorizing4 certain extrajudicial statements, including offering “[a]ny opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case,” subject to their professional obligations. E.D. Va. Crim. R. 57.1(C)(6). Any “lawyer who is participating . . . in the . . . litigation of [this] matter” may also have an ethical duty to refrain from making extrajudicial statements that pose a risk of prejudicing the proceeding. See ABA Model Rules of Prof’l Conduct R. 3.6 (2023).5

The footnotes to this passage decline to extend the local rules to Tish James herself, but does extend them to anything her attorneys advise her to say.

3 In its opposition to the motion, the government argues that the alleged statements regarding the grand jury proceedings do not “rise to the same level” as the defendant’s public statements proclaiming her innocence. ECF No. 30 at 5. The Court does not believe a comparison of the defendant’s public statements and the government’s interactions with the media does much to resolve any question presented here.

4 The parties do not discuss this point in their briefing, but the Court observes that the Local Rules’ prohibition on ‘authorizing’ extrajudicial statements would appear to apply to public statements a defendant might make with the advice of counsel—though Rule 57.1 binds only the lawyer, not the defendant.

5 The government argues that the defendant herself is subject to certain restrictions on her communication with the media because she is a “lawyer.” ECF No. 30 at 4 (quoting E.D. Va. Crim. R. 57.1(C)). But the Court finds that “lawyer” within the meaning of the Local Rules refers to a person practicing law in this district, not to any individual with a juris doctor degree or a bar license. Accordingly, this Order does not extend to the defendant’s speech as a defendant. But see supra n.2.

And he cites US v. Trump back at loaner AUSA Keller (making several copy and paste errors in the process) for the principle that defendants have more right to speak than the attorneys on the case.

At this stage of the litigation, the Court does not find that a restriction on the defendant’s own speech is necessary to ensure a fair trial for both sides. The Court certainly has the power to “control the speech and conduct even of defendants in criminal trials when necessary to protect the criminal justice process,” United States v. Trump, 88 F.4th 990, 1006 (D.C. Cir. 2023) (citing Nebraska Press, 427 U.S. 539, 553–54 (1976)). But so far, the government has not demonstrated that the defendant’s speech has risen to the level that it must be dampened in spite of her First Amendment rights in order to preserve a just legal process. See id. at 1008 (recognizing that “a criminal defendant—who is presumed to be innocent—may very well have a greater constitutional claim than other trial participants to criticize and speak out against [t]he prosecution and the [criminal] trial process . . . .”).

One of the funniest part of Judge Walker’s opinion his how he refers to Lindsey the Insurance Lawyer’s unlawful role.

The motion criticizes alleged communications between a government attorney1and a member of the media via the encrypted messaging app Signal.

1 The status of the government attorney who made the alleged statements is the subject of a motion pending before the Honorable Cameron McGowan Currie. ECF No. 22. Thus, the Court will avoid referencing the role of the attorney in this case. Additionally, this Court generally does not refer to government attorneys by name. It will not depart from that practice here

Share this entry

Judge Nachmanoff Punts on Privilege

/18 Comments/in /by

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:

Share this entry

Jeanine Pirro Covers Up Donald Trump’s Doxing Conspiracy

/21 Comments/in , /by

If it weren’t for a recent shift in DOJ’s prosecutorial focus, Jeanine Pirro’s wildly corrupt effort to suppress the larger criminal context of Tayler Taranto’s stalking of Barack Obama in 2023 would be no more than a garden variety authoritarian effort to rewrite history.

As ABC and Politico have written, two AUSAs who’ve been prosecuting Taranto, Carlos Valdivia and Samuel White, submitted a sentencing memo documenting how the Navy veteran with long-standing mental health issues first participated in January 6 and then, years later, drove his van containing guns and ammunition to stalk Kalorama, looking for Obama while ranting, “Gotta get the shot, stop at nothing to get the shot. This is where other people come to get the shot;”

The language in the memo about the January 6 attack and Taranto’s role in it attracted some press attention.

On January 6, 2021, thousands of people comprising a mob of rioters attacked the U.S. Capitol while a joint session of Congress met to certify the results of the 2020 presidential election. Taranto was accused of participating in the riot in Washington, D.C., by entering the U.S. Capitol Building. After the riot, Taranto returned to his home in the State of Washington, where he promoted conspiracy theories about the events of January 6, 2021.

And so Pirro (or someone at DOJ) did what all corrupt sycophants would do: put the two attorneys on leave for speaking the truth about Pirro’s liege.

Then, two of the AUSAs who bolloxed the Sydney Reid case, Jonathan Hornok and Travis Wolf, filed notices of appearance and submitted a new sentencing memo, asking for the same sentence. The description of January 6 as a riot, above, was removed (but not a quote of Taranto mentioning it).

More scandalously, the revised sentencing memo excised the description of how Taranto came to be stalking the former President, the passage in red, below: Because Donald Trump, as a private citizen, first doxed Obama.

The next day, on June 29, 2023, then-former President Donald Trump published on a social media platform the purported address of former President Barack Obama. Taranto re-posted the address on the same platform and thereafter started livestreaming from his van on his YouTube channel. Taranto broadcast footage of himself as he drove through the Kalorama neighborhood in Washington, D.C., claiming he was searching for “tunnels” he believed would provide him access to the private residences of certain high-profile individuals, including former President Obama. He parked his van, walked away from it, and approached a restricted area protected by the United States Secret Service. He walked through the nearby woods and stated, “Gotta get the shot, stop at nothing to get the shot.” [my emphasis]

As I said, if it weren’t for a recent shifted prosecutorial focus, criminalizing doxing partly as a way to criminalize otherwise peaceful protest against ICE and CBP, this kind of memory hole would be merely another instance of gross corruption and the human waste of professional careers destroyed because the aspiring dictator refuses to take accountability for his own actions.

But DOJ has recently arrested a number of people for doxing under 18 USC 119, a law that specifically protects law enforcement officers: first Gregory Curcio (who not only posted the address of an ICE lawyer, but invited others to swat her; his indictment included a domestic violence claim). Then Cynthia Raygoza, Ashleigh Brown, and Sandra Carmona Samane, who livestreamed from the house of an ICE officer they followed home.

Here’s how Bill Essayli, who regularly made shit up even before getting exposed for playing dress-up as a US Attorney the other day, said about the latter.

“Our brave federal agents put their lives on the line every day to keep our nation safe,” said Acting United States Attorney Bill Essayli. “The conduct of these defendants are deeply offensive to law enforcement officers and their families. If you threaten, dox, or harm in any manner one of our agents or employees, you will face prosecution and prison time.”

According to the indictment, on August 28, 2025, the defendants followed the victim – an ICE agent – from the Civic Center in downtown Los Angeles to his personal residence. The defendants livestreamed on their Instagram accounts their pursuit of the victim and provided directions as they followed the victim home, encouraging their viewers to share the livestream. Their Instagram accounts used to livestream the event were “ice_out_of_la,” “defendmesoamericanculture,” and “corn_maiden_design.”

Upon arriving at the victim’s personal residence, the defendants shouted to bystanders while livestreaming on Instagram that their “neighbor is ICE,” “la migra lives here,” and “ICE lives on your street and you should know.”

The defendants publicly disclosed on Instagram the victim’s home address and told viewers, “Come on down.”

Ashleigh Brown is the woman whose charges for being assaulted by an FPS officer were dismissed this week after defense attorneys discovered his criminal record. Unlike the Taranto case, there’s no claim the women did or would have been armed.

Mostly, they told this guy’s neighbors he was la migra, one of the men who kidnap workers from outside Home Depot.

Donald Trump’s doxing of Barack Obama was more consequential than what these three women did. Taranto was armed and, not least because of his mental health problems, dangerous.

Donald Trump’s own DOJ says the kind of doxing Donald Trump did should hold a five year sentencing in prison.

And DOJ just took ham-handed steps to pretend Trump didn’t do just that.

Share this entry

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

/55 Comments/in /by

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

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

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

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

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

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

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

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

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

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

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

Share this entry

Donald Trump’s [Miles] Starr Chamber

/14 Comments/in , , /by

When the government first asked, on October 13, to use a filter review to access content seized from Dan Richman five years ago, it described that Jim Comey, “prefers to challenge the underlying search warrant first before any review takes place.”

But in his response yesterday, Comey didn’t do that.

Rather, after a heavily-redacted discussion of the problems with DOJ’s past and prospective access to the content, he proposed that Judge Michael Nachmanoff should deny the government’s filter request without prejudice, allowing DOJ to reconsider its bid for a filter protocol after they’ve first answered a set of questions.

For the foregoing reasons, the Court should deny the government’s motion to implement its proposed filter protocol without prejudice, and direct the government to disclose the following information to allow both the Court and the defense to assess the appropriateness of the protocol:

1. The legal authority for the contemplated review.

2. Whether any quarantined materials have been accessed by, shared with, or provided to the case team (and, if so, which materials were reviewed by which personnel on which day), and whether any such materials have been produced in discovery.

3. The protocol used during the prior filter review, including search parameters, segregation measures, privilege determinations, and associated logs or correspondence.

4. Whether the government intends to search raw returns or only the set already filtered in the prior review. See In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 181 (4th Cir. 2019), as amended (Oct. 31, 2019) (holding that “the magistrate judge erred” by approving a filter protocol “without first ascertaining” the materials to be reviewed).

5. Whether non-lawyers will conduct any portion of the Filter Review. See ECF No. 38-1 ¶ 2 n.2 (“The Filter Team is comprised of Two Assistant United States Attorneys, and their support staff”) (emphasis added); see In re Search Warrant Issued June 13, 2019, 942 F.3d at 177 (criticizing the use of non-lawyers to designate documents as nonprivileged).

One might explain the reason why he’s doing this in one or two ways.

The first is a procedural reason. The warrants and original filter protocol themselves were probably reasonably sound for the purpose to which they were put: investigating whether Richman leaked classified information. The heavily redacted bit describes four different warrants and the loaner AUSAs’ original filing described content seized from “an image of a computer hard drive, an iCloud download, the backup of an iPhone, and the backup of an iPad.” There are five sealed exhibits to the filing (none cited in unredacted form), of which four are presumably the warrants and one may pertain to the original protocol, though there is something identified in footnote 4 that “was not produced,” not even after Comey’s team asked about it on October 23. While the seized material included a great deal of material, including material pertaining to Richman’s clients other than Comey and “sensitive and private materials belonging to his students,” the original filter protocol withheld, “private materials related to his students, as well as privileged materials, [from] the case team.”

But, contrary to the approach used with (for example) Michael Cohen as well as what we’ve been able to publicly review of warrants implicating Rudy Giuliani, in which prosecutors obtained new warrants every time the scope or target of an investigation changed, the government appears not to have obtained new warrants to search this material for a different crime, the alleged lie Comey told in 2020.

[I]t appears that the government has not obtained any search warrants in connection with the instant matter, including any warrant authorizing a search of the Arctic Haze materials for evidence of the two offenses with which Mr. Comey is charged.

Comey cites several precedents, one in the Fourth Circuit, that would require a new warrant.

He points to other reasons, too, why the government would need to obtain new warrants: because these warrants are not only stale, but they predate the alleged crime here, testimony from October 2020.

The government now proposes to use those warrants to search for evidence of different crimes that arose from a proceeding that occurred after USAO-DDC obtained the Arctic Haze warrants.

Comey also objects because some part of this was sealed by another court, which by date and location would probably have been an order from Beryl Howell when she was Chief Judge in DC.

The government has no lawful basis to review materials obtained more than five years ago, in a closed investigation that ended without any charges, pursuant to stale warrants for separate offenses, including materials that remain under seal by another court. [my emphasis]

Comey maintains that he can challenge the use of these warrants here.

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

[snip]

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

But even the language here notes at one problem: Normally you challenge a Fourth Amendment violation by suppressing evidence for use at trial. Here, Comey is trying to do more. He’s trying to prevent investigators from even accessing it. And so, instead, he’s asking the judge to force prosecutors to answer some basic questions in the guise of allowing him to suppress the warrants.

Until the government answers the questions the defense has previously raised about these warrants, which to date have remained unanswered and which are detailed at the end of this submission, the defense will not be in a position to file an appropriately targeted suppression motion.

Which brings us to the second possible reason for responding this way: question 2. Who already accessed privileged material, when did they do so, and has the government turned over that material in discovery? The answer to that question, especially, would force investigators to confess if they’ve already snuck a peek into what is in the privileged communication.

The “spill” that Comey suspects happened may have happened recently: on the day Lindsey Halligan obtained the indictment.

That footnote, marked in pink, cites the Criminal Case Cover Sheet, which, in spite of being labeled as “REDACTED,” is not, and so among other things, reveals the name of one of two FBI agents on the case, Miles Starr (the other being Jack Eckenrode, who investigated Scooter Libby but then left the team, and who joined John Durham in chasing Russian disinformation for four years).

I’ve redacted Starr’s phone number. You’re welcome, Miles.

But the Sheet also includes an error: it lists three counts, including the one, pertaining to Comey’s answer to Lindsey Graham’s question about a CIA referral (one that FBI may never have received) that Kash Patel and John Ratcliffe ret-conned into a “Clinton Plan” on which to hang the Durham investigation. That’s the one the grand jury no-billed.

While none of that explains when and how Starr and Eckenrode snuck a peek of privileged information, it might explain why.

Kash and Eckenrode are still chasing the theory behind the dropped charge, that Jim Comey purportedly knew Hillary Clinton had a plan (one fabricated by Russia and then embellished by Eckenrode and Durham to claim Hillary wanted to frame Trump) to emphasize Donald Trump’s ties with Russia. That’s the logic of the larger conspiracy theory that Eckenrode has been hired to chase. It was and remains Russian disinformation, but that didn’t stop Eckenrode the last time he tried this.

Indeed, because DC USAO obtained warrants in 2019 and 2020, there may be communications between Comey and his attorneys about the John Durham investigation, about Eckenrode’s past witch hunt, which would explain why Comey is so interested in the scope of proposed review, which the loaner AUSAs still haven’t told Comey.

Because Kash and Eckenrode are chasing that conspiracy theory, this is a much bigger issue than just the case before Nachmanoff. As I laid out in my post predicting that John Durham’s investigation was a preview of coming attractions (even before I knew that Kash had brought Eckenrode back!), Durham already played games to access attorney-client privileged material.

In response, Sussmann accused Durham of abusing the same grand jury process he abused with Benardo (abuse, ironically, that debunked Durham’s conspiracy theory).

First, the Special Counsel’s Motion is untimely. Despite knowing for months, and in some cases for at least a year, that the non-parties were withholding material as privileged, he chose to file this Motion barely a month before trial—long after the grand jury returned an Indictment and after Court-ordered discovery deadlines had come and gone.

Second, the Special Counsel’s Motion should have been brought before the Chief Judge of the District Court during the pendency of the grand jury investigation, as the rules of this District and precedent make clear.

Third, the Special Counsel has seemingly abused the grand jury in order to obtain the documents redacted for privilege that he now challenges. He has admitted to using grand jury subpoenas to obtain these documents for use at Mr. Sussmann’s trial, even though Mr. Sussmann had been indicted at the time he issued the grand jury subpoenas and even though the law flatly forbids prosecutors from using grand jury subpoenas to obtain trial discovery. The proper remedy for such abuse of the grand jury is suppression of the documents.

Fourth, the Special Counsel seeks documents that are irrelevant on their face. Such documents do not bear on the narrow charge in this case, and vitiating privilege for the purpose of admitting these irrelevant documents would materially impair Mr. Sussmann’s ability to prepare for his trial.

He also revealed that some of those privilege claims went back to August — that is, the weeks after Durham should have closed up shop.

Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 9, 2021) (requesting a call to discuss privilege issues with a hope “to avoid filing motions with the Court”); Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 14, 2021) (stating that the Special Counsel “wanted to give all parties involved the opportunity to weigh in before we . . . pursue particular legal process, or seek relief from the Court”). And since January— before the deadline to produce unclassified discovery had passed—the Special Counsel suggested that such a filing was imminent, telling the DNC, for example, that he was “contemplating a public court filing in the near term.” Email from Andrew DeFilippis, Dep’t of Just., to Shawn Crowley, Kaplan Hecker & Fink LLP (Jan. 17, 2022). [my emphasis]

In a hearing on May 4, right before trial, Joffe’s lawyer revealed they had demanded Durham press a legal claim much earlier, in May 2021.

MR. TYRRELL: So if they wanted to challenge our assertion of privilege as to this limited universe of documents — again, which is separate from the other larger piece with regard to HFA — they should have done so months ago. I don’t know why they waited until now, Your Honor, but I want to be clear. I want to say without hesitation that it’s not because there was ever any discussion with us about resolving this issue without court intervention.

THE COURT: That was my question. Were you adamant a year ago?

MR. TYRRELL: Pardon me?

THE COURT: Were you adamant a year ago that —

MR. TYRRELL: Yes. We’ve been throughout. We were not willing to entertain resolution of this without court intervention.

THE COURT: Very well.

Ultimately, Cooper did bow to Durham’s demand, but prohibited them from using those documents at trial.

That didn’t prevent DeFilippis from attempting to use the privileged documents to perjury trap his one Fusion witness, the kind of perjury trap that might have provided a way to continue the madness indefinitely.

There must have been nothing interesting there: most of the Fusion documents were utterly irrelevant to the Sussmann charges, but could implicate the Danchenko ones, but Durham didn’t use them there, nor did he explain their content in his final report.

That effort involved, among other things, abusing the prosecutorial process to bypass rulings (such as the sealing order mentioned above) that Beryl Howell had already made, and using one criminal case, against Michael Sussmann, to obtain attorney-client privileged materials that would only be relevant in another criminal case, the Igor Danchenko case (or a larger conspiracy).

Particularly given the reticence of the loaner AUSAs to tell Comey what happened, whether they have warrants, who read what, this feels like an attempt to retroactively bless access that investigators already got. And the stakes are bigger than this one case. As Durham (and Eckenrode) did in 2022, this likely would primarily serve to feed their bigger conspiracy theory.

Plus, if Eckenrode is sneaking peeks at Comey’s privileged communications still in FBI custody, there’s nothing that would prevent him from doing the same with all the other people whose privileged communications have been seized during this years-long witch hunt.

And that’s why you ask these questions.

Share this entry

A Tale of Three Footnotes for “Purported Interim U.S. Attorney Lindsey Halligan”

/33 Comments/in /by

I suppose I should not have doubted that Abbe Lowell would file a request for relief based on Lindsey Halligan’s stalking of Anna Bower.

I mean, I didn’t doubt it.

But I was impatient. I should also have considered the optimal timing for Lowell to do that: the evening before the arraignment.

What a way for Lindsey Halligan to start out on the wrong foot with Judge Jamar Walker, with both the request to make Lindsey follow the rules on public comment and notice that Attorney General James (as Lowell refers to his client throughout) intends to move — tomorrow — to disqualify Lindsey on a schedule that will coincide with Jim Comey’s parallel attempt.

The request itself makes ample use of the opening Lindsey gave James to mock her inexperience. It refers to her as the “purported interim US Attorney” (or similar) five times.

Although the government sought and filed the indictment in this case on October 9, 2025—signed only by purported interim U.S. Attorney Lindsey Halligan—articles issued before the charges were filed indicated that charges would be brought.

What precipitates this motion now is a digital messaging exchange that occurred after the government brought charges, between purported interim U.S. Attorney Halligan and Anna Bower, a senior journalist for Lawfare, published on Monday, October 20, 2025.

[snip]

After confirming Ms. Halligan’s identity, Ms. Bower asked the purported interim U.S. Attorney what she was “getting wrong,” and Ms. Halligan replied: “Honestly, so much. I can’t tell you everything but your reporting in particular is just way off. I had to let you know.”

[snip]

These extrajudicial statements and prejudicial disclosures by any prosecutor, let alone one purporting to be the U.S. Attorney, run afoul of and violate the Federal Rules of Criminal Procedure, the Code of Federal Regulations, this Court’s Local Rules, various rules of ethical and professional responsibility, and DOJ’s Justice Manual.

[snip]

Ms. Halligan’s initiation of contact, and then repeated exchanges, with the journalist—a mere two days after filing charges—appear to have violated several of the above-cited rules and codes of professional conduct. As the purported chief law enforcement officer for this District, as well as the individual who alone presented evidence to the grand jury in Alexandria and signed the two-count indictment of Attorney General James, 12 Ms. Halligan should know that she is prohibited by the federal, local, and Department rules governing extrajudicial statements and media contacts from engaging with a journalist about the substance and merits of a charged criminal case and the purported strength of the evidence put before a grand jury. [my emphasis]

It describes how even someone with absolutely no prosecutorial experience like Lindsey should know basic rules.

No prosecutor is exempt from following those rules, but they should be followed to the letter by anyone trying to lead a prosecutor’s office. Rather than follow DOJ’s rules protecting non-public, sensitive information obtained in connection with a criminal case and investigation from disclosure, Ms. Halligan opted to use an encrypted app to text with a journalist and discuss the case, certain evidence, and her views on the strength of the charges brought, while ignoring any concerns of prejudice to the defendant, a fair trial, and rules against extrajudicial statements and pretrial publicity.

It has been reported that Ms. Halligan has no prosecutorial experience whatsoever. But all federal prosecutors are required to know and follow the rules governing their conduct from their first day on the job, and so any lack of experience cannot excuse their violation. While the oftquoted phrase “the bell cannot be unrung” is true for that which has already occurred, the Court can require the government to follow the law going forward by entering Attorney General James’ requested Order and preventing further disclosures of investigative and case materials, and of statements to the media and public, concerning this case and any parties or witnesses.

It lists the many rules Lindsey broke:

  • Federal Rule of Criminal Procedure 6(e)
  • 28 C.F.R. § 50.2
  • A variety of local rules, starting with Local Criminal Rule 57.1, Free Press – Fair Trial Directives
  • American Bar Associations Model Rule 3.8, Special Responsibilities of a Prosecutor
  • Various parts of the Justice Manual, starting with Justice Manual (JM) 1-7.100

And then there are three footnotes which, as footnotes often do, have the meat of the argument.

Though the body of the motion does not mention Federal Records Act, Footnote 11 notes that Attorney General James will pursue the apparent violation of 44 U.S.C. § 2911 (violations of which require disciplinary action) “with the appropriate offices.”

11 In addition to apparently violating the rules addressed in this section, Ms. Halligan admitted in her exchanges with the journalist to a likely violation of the federal records laws and rules around using unapproved electronic messaging accounts. See 44 U.S.C. § 2911 (restricting officer or employee of an executive agency from sending messages using a non-official electronic messaging account). Ms. Halligan acknowledged she was using an unofficial messaging application, Signal, with its “disappearing messages” feature enabled and set to automatically delete after eight hours. Trying to delete the paper trail of improper communications does not mean they did not occur. For this reason, Attorney General James also asks the Court to order government attorneys and agents involved in this case to follow relevant laws around records retention, and to impose a litigation hold preventing the deletion or destruction of any records or communications having anything to do with the investigation and prosecution of this case. Attorney General James will pursue this apparent violation of the law with the appropriate offices.

As for the grand jury secrecy violations, Footnote 5 notes that a court can prosecute or hold someone in contempt for violating grand jury secrecy.

5 The government can and does prosecute knowing violations of Rule 6(e) pursuant to district courts’ contempt powers under 18 U.S.C. § 401(3), as well as pursuant to multiple felony criminal statutes. See Justice Manual, CRM 156 (observing that disclosure of “grand jury material with the intent to obstruct an ongoing investigation . . . may be prosecuted for obstruction of justice under 18 U.S.C. § 1503,” and that an individual who “improperly disseminates grand jury materials may be prosecuted for the theft of government property under 18 U.S.C. § 641”) (collecting cases).

But, Footnote 6 describes, Attorney General James is not asking for that kind of relief — that is, prosecution.

6 Attorney General James is not at this time formally moving for relief pursuant to FRCrP 6(e).

At least, “not at this time.”

And honestly, Lindsey may not be the real target here. One of the things Lowell requests is a log of all contact between “any government attorney or agent on this case and any member of the news media” on this case.

3. Directing government counsel to create and maintain a log of all contact between any government attorney or agent on this case and any member of the news media or press concerning this case.

Lindsey hasn’t been doing the bulk of that. Eagle Ed Martin has.

And because Lindsey blabbed her mouth, Eagle Ed may, as a result, have to catalog all the times he has leaked about this case.

Share this entry

Lindsey the Insurance Lawyer Gets into Signal Trouble

/15 Comments/in /by

Lindsey Halligan’s ham-handed effort to bully Anna Bower into backing off her coverage of problems with the Tish James’ indictment has not gone unnoticed.

American Oversight just filed a FOIA  for Halligan’s Signal texts.

All messages on the messaging platform Signal and any app that can interfacewith Signal or otherwise borrow its technology sent or received by U.S.Attorney Lindsey Halligan regarding government business.

American Oversight requests that all images, videos, audio recordings, or otherattachments regarding official government business shared via Signal, includingany app that can interface with Signal or otherwise borrow its technology, beproduced in response to this request. To the extent any hyperlinks and/or URLs were shared, American Oversight requests records in a form that display the full URL.

Given that this request is limited to a specific, recent, and readily identifiable documents, American Oversight expects that this request can be processed on the Simple processing track and result in a prompt agency response.

Remember: American Oversight was the organization that sued to preserve Pete Hegseth’s Signal tweets, only to discover many of them were destroyed.

As the NGO noted in a presser, though, Halligan is under additional legal mandate to preserve the texts she sent to Bower: DOJ records retention rules that will become key in the Vindictive Prosecution motions filed against her.

Today, American Oversight launched an investigation into interim U.S. Attorney Lindsey Halligan’s reported use of Signal to communicate with a journalist about the prosecution of New York Attorney General Letitia James — one of President Trump’s perceived political enemies. Halligan, whose status and authority as interim U.S. Attorney are being contested in court, later attempted to retroactively claim her Signal messages to the reporter were off the record. According to reports, she set her messages to automatically delete after eight hours — which, if true, constitutes a clear violation of the Federal Records Act and the Department of Justice’s own records-retention rules requiring the preservation of official communications.

In launching its investigation, the nonpartisan watchdog filed a Freedom of Information Act (FOIA) request with the DOJ seeking Halligan’s Signal communications about government business, as well as related DOJ records concerning her use of the app.

“No one can go ‘off the record’ to avoid following the law, not even someone acting as a powerful interim U.S. Attorney. That Halligan used Signal to discuss government business and configured her messages to automatically delete raises serious concerns that she is actively violating the law and attempting to hide the record of her actions — including that she may have revealed sensitive grand jury information,” said Chioma Chukwu, Executive Director of American Oversight. “What makes this all the more alarming is the context: Halligan appears to have engaged in this conduct while leading prosecutions against the president’s perceived political enemies — heightening concerns that her lawlessness is part of a broader pattern of politicized and unethical behavior within the president’s Justice Department.”

Plus, it’s not like Halligan can claim ignorance of the Federal Records Act. The law was central to the logic of the stolen documents case on which she was a defense attorney for Trump.

I’m still somewhat surprised that neither Patrick Fitzgerald nor Abbe Lowell have filed a preservation order on Halligan. Perhaps they’re just assuming that Halligan’s destruction of these texts will guarantee DOJ’s failure on the Vindictive motions?

Correction: They have not sued for Halligan’s texts, yet; they’ve just filed the lawsuit.

Share this entry