The Comey Prosecution is Imploding

Corruption meets incompetence at Pam Bondi's DOJ

President Trump’s revenge prosecution of former FBI Director James Comey is on life support less than two months after it was filed. On Monday federal magistrate judge William Fitzpatrick took the rare step of ordering prosecutors to hand over to the defense all the records of the confidential grand jury proceedings. In a sharp rebuke, the judge found there was “a disturbing pattern of profound investigative missteps, missteps that led an FBI agent and a prosecutor to potentially undermine the integrity of the grand jury proceeding.”

The prosecution is unraveling on several other fronts as well. At this point, it appears extremely unlikely the case will ever make it to trial.

We are seeing what happens when corruption meets incompetence at Pam Bondi’s Department of Justice. It was obvious from day one that this case never should have been indicted. It’s good to see the safeguards of the criminal justice system responding accordingly.

Background on the Comey Indictment

Trump has been attacking Comey and demanding his prosecution for years, angry about Comey’s role in investigating Russian efforts to influence the 2016 presidential election - what Trump calls the “Russia hoax.” After his election in 2024, Trump renewed his demands that Comey be prosecuted — for what alleged crimes was never clear, but that didn’t seem to matter. The Justice Department began investigating Comey for allegedly lying during Congressional testimony back in 2020. This past September, as the five-year statute of limitations was about to expire, career prosecutors in the U.S. Attorney’s Office for the Eastern District of Virginia concluded there was insufficient evidence and the case should not be pursued.

Trump responded by forcing out Erik Siebert, the respected career prosecutor who was acting U.S. Attorney and who had declined to bring the case. He then installed Lindsey Halligan, one of his personal attorneys with no experience as a prosecutor, as the new acting U.S. Attorney. In a Truth Social post, he ordered Attorney General Pam Bondi to ensure that “justice” was done by quickly indicting Comey and other Trump enemies, who he claimed were all “guilty as hell.”

Lindsey Halligan (Jacquelyn Martin/AP)

Halligan complied by indicting Comey just a few days after her appointment and a few days before the statute of limitations would have expired. The skimpy, two-page indictment charges the former FBI director with lying to Congress and obstructing a 2020 Congressional proceeding.

Halligan had never indicted a case before. Because the career people in the office did not support the indictment, no other prosecutor joined Halligan on her maiden voyage in the grand jury.

Allegations of Privilege and 4th Amendment Violations

During pretrial skirmishing, Comey’s defense team came to believe the government may have engaged in misconduct before the grand jury. Prosecutors are seeking to use evidence obtained during another investigation in 2019 and 2020 that was called “Arctic Haze.” That investigation into possible leaks of classified information involved law professor Dan Richman, a friend of Comey’s who had also acted as his attorney. The investigation did not result in any charges, but investigators executed four search warrants and seized materials from Richman’s email and cloud accounts and electronic devices.

Fast forward to 2025: prosecutors in the Comey case want to use some of that seized evidence from the earlier investigation to prove their case against Comey. Following his indictment, prosecutors asked the judge to set up a screening procedure to allow prosecutors to use the evidence while avoiding government exposure to any material protected by attorney-client privilege. The defense responded by claiming that the government had already reviewed the privileged materials and may have improperly relied upon them when obtaining the indictment.

Judges, like defendants, typically do not have access to grand jury materials. Rather than just turn the materials over to the defense, prosecutors suggested that Fitzpatrick first review the materials himself. He agreed, and that review led to his order on Monday.

The judge found that the government likely acted improperly when it decided to “rummage through” the material seized during the Arctic Haze investigation. He wrote: “Inexplicably, the government elected not to seek a new warrant for the 2025 search, even though the 2025 investigation was focused on a different person, was exploring a fundamentally different legal theory, and was predicated on an entirely different set of criminal offenses.” Had the government obtained a new search warrant based on the allegations against Comey, it would have been properly limited in scope to evidence potentially relevant to these particular charges. But that would have taken time — time that perhaps the government thought it did not have.

The judge also found there was evidence that during Arctic Haze the government had not taken effective steps to limit the seizure of attorney-client privileged materials. It also apparently seized materials that went far beyond the scope of the search warrants, a violation of the Fourth Amendment.

The judge further found that shortly before Comey was indicted, investigators realized they may have been exposed to materials protected by attorney-client privilege. Rather than walling off those investigators from the case, however, the lead agent who had been exposed went ahead and testified in the grand jury as the government’s only witness. The judge stated that the “government’s decision to allow an agent who was exposed to potentially privileged information to testify before a grand jury is highly irregular and a radical departure from past DOJ practice.”

Halligan’s Alleged Misconduct

In addition to the misconduct involving the Fourth Amendment violations and attorney-client communications, the judge found that Halligan made two statements before the grand jury “that on their face appear to be fundamental misstatements of the law that could compromise the integrity of the grand jury process.”

We don’t have Halligan’s exact statements because they are redacted, but it appears she told the grand jurors that Comey may need to testify at his trial in order to explain what happened. As any first-year law student knows, that suggestion runs afoul of the Fifth Amendment. As the judge noted, the statement “ignores the foundational rule of law that if Mr. Comey exercised his right not to testify the jury could draw no negative inference from that decision.” It suggests that rather than the government having the burden to prove guilt beyond a reasonable doubt, Comey had the burden of explaining away the government’s evidence.

Halligan also apparently told the grand jurors they did not need to rely only on the evidence before them. The judge found that her statements suggested the grand jurors “could be assured the government had more evidence – perhaps better evidence – that would be presented at trial.” This too is improper. The grand jury must find probable cause based on the evidence the government presents, not speculate about other, juicier evidence that may be out there.

The judge also found irregularities in the record and indications that the grand jury transcripts the government provided were not complete. Halligan initially presented a proposed three-count indictment to the grand jury late in the afternoon, but it rejected one count. Later that evening, Halligan apparently obtained a vote on the two-count indictment that was ultimately returned. But the judge noted there were no records of those later proceedings before the grand jury. It’s not entirely clear the second indictment was actually presented to or voted on by the grand jury. Or maybe Halligan went back and obtained the vote but there was no court reporter present because it was now evening - which would be another major violation of grand jury procedure.

(This confusion in the record aligns with the reports at the time the indictment was returned that there was some confusion in the courtroom because there appeared to be two different signed indictments and Halligan herself was less than clear on what exactly had happened.)

In any event, the judge found there was enough uncertainty about how exactly the indictment was obtained to overcome the “presumption of regularity” typically associated with grand jury proceedings and allow the defense to explore the issue.

Update: A few hours after I published this post, the government admitted in a hearing before Judge Nachmanoff that the grand jury never saw the second version of the indictment, the one with only two counts. Halligan and the grand jury foreperson just signed it on their own, and that became the basis of the case. You can read the New York Times summary of that hearing here. The judge hasn’t ruled yet, but in my view that should be game over: if the grand jury did not see and vote on the indictment, it’s not valid. The case should be dismissed. And because there never was a valid indictment at all, there’s a good chance the statute of limitations will prohibit the government from re-indicting.

What Happens Now

Magistrate Judge Fitzpatrick concluded by listing eleven different grounds the defense may have to challenge the indictment, based on the mishandling of privileged information, Fourth Amendment violations, and misconduct before the grand jury. He ordered prosecutors to produce all grand jury materials to the defense by Monday afternoon.

This is an extraordinary remedy. In a normal case the defense does not get these materials even if a case goes to trial. Secrecy is a fundamental aspect of grand jury proceedings and that secrecy is jealously guarded. But in cases like this, where there is serious evidence of government misconduct, the defendant’s right to Due Process can override that secrecy.

Grand jury practice is a specialized area. Even most lawyers know very little about it. The idea that Halligan, with no relevant experience, could just jump in and indict a major criminal case on her own without screwing it up required an astonishing combination of arrogance and ignorance.

But calling these mere rookie mistakes would be an insult to rookie prosecutors everywhere. This is gross incompetence. It’s what happens when the administration values blind loyalty to Trump over experience, ability, or integrity.

This doesn’t mean the case will be dismissed for misconduct - yet. It simply means the defense has the right to review the grand jury materials when preparing its arguments for dismissal. The judge will still need to rule on those motions down the road. The tenor of his ruling suggests that he thinks the defense may have a strong case.

This order was issued by federal magistrate judge Fitzpatrick, who is handling pretrial matters for the federal judge assigned to the case – a common practice. The government promptly asked that judge, Michael Nachmanoff, to pause the order to give them time to appeal. Judge Nachmanoff agreed and gave prosecutors until Wednesday to file their appeal, and gave the government until Friday to respond. It sounds like he intends to move quickly.

If Nachmanoff upholds Fitzpatrick’s order, the grand jury materials should be turned over and proceedings on the defense motions to dismiss will move forward — or there may be further appeals.

Challenges to Halligan’s Appointment

The potential misconduct before the grand jury is only one of the challenges facing the Comey indictment — and may not even be the strongest one. Another federal district court judge recently heard arguments from attorneys for Comey and New York Attorney General Letitia James (another Trump enemy recently indicted by Halligan) that Halligan’s appointment as acting U.S. Attorney was unlawful.

The Constitution requires that federal officers such as United States Attorneys be appointed with the “advice and consent” of the Senate. In the absence of a Senate-confirmed appointee, federal law provides that the president may appoint an acting U.S. Attorney for a period not to exceed 120 days. If that time expires, the federal judges in that district then select someone to fill the role until the Senate confirms a nominee.

As I noted above, Erik Siebert was serving as acting U.S. Attorney in the Eastern District of Virginia. He had been appointed to that position by Trump himself. His 120-day term had expired and the judges chose to keep him in the role. Then Trump forced him out and sought to install Halligan as acting U.S. Attorney in his place.

The problem, according to the defense, is that the law only allows the president to make one 120-day interim appointment. If he could make successive appointments, as the government is claiming, that would allow him to put a rolling series of political allies or unqualified hacks in the role indefinitely and bypass Senate confirmation forever. That would violate the Constitutional checks and balances provided by the Senate’s advice and consent role.

Judges in several other districts have ruled that the acting U.S. Attorneys there were unlawfully appointed, based on this same argument. They declined to dismiss cases brought there, however, because other, legally-appointed prosecutors also had been involved in the indictments in question. Here Halligan acted alone, so if the defense is correct it means there was no one with lawful authority in the grand jury when the case was indicted. As the defense argued, it would be as if Trump sent Steve Bannon into the grand jury to indict one of Trump’s enemies.

The judge hearing the challenges seemed quite sympathetic to the defense claims. She said she would rule by Thanksgiving, so we should know something soon. If she dismisses the indictments prosecutors may be able to re-indict James once a lawfully-appointed U.S. Attorney is in place. But the statute of limitations should prevent them from re-indicting Comey.

If the defense wins here, the allegations of grand jury misconduct may never need to be decided.

Other Challenges to Comey’s Indictment

The defense has raised other serious challenges to the Comey indictment as well. Foremost is a claim of vindictive and selective prosecution: the argument that Comey was improperly targeted for indictment based on Trump’s personal animus. That motion included a 60-page appendix listing Trump’s public attacks on Comey over the past eight years. Such motions are very difficult to win, but if anyone ever had a good vindictive prosecution argument, it’s Comey.

The defense has also challenged the indictment as fundamentally ambiguous and legally flawed, because it’s not clear exactly what the government is alleging. The indictment focuses on an exchange Comey had with Senator Ted Cruz regarding whether Comey had ever authorized FBI Deputy Director Andrew McCabe to leak information to the press. But to prove that was false, the government apparently intends to argue that Comey authorized Richman to leak information - a different issue. At the very least, the defense argues, the questions and answers were fatally ambiguous and cannot support a claim that Comey deliberately lied.

In addition, Comey argues that his answers were literally true: he told Cruz that he would “stand by” his earlier testimony in 2017 about whether he authorized anyone to leak. As the defense notes, even if the 2017 testimony were false (which the defense denies), saying in 2020 that you stand by it is not itself a false statement. Under these statutes it’s not enough if an answer was potentially confusing or even deliberately evasive. If it’s literally true, it’s not a crime.

Checks and Balances

I expect the Comey case is going to be dismissed, one way or another. Perhaps someday, if there is a change in administration, Halligan and others will face professional consequences for their misconduct, as did Rudy Giuliani, Sydney Powell, and other members of Trump’s legal “elite strike force” who challenged supposed election fraud in 2020.

Trump is losing in other legal arenas as well. In my last post I wrote about the acquittal of Sidney Reid, who was charged with misdemeanor assault on a federal officer after a grand jury refused three times to indict her for a felony. Two weeks ago another trial jury acquitted Sean Dunn, the “Subway sandwich guy,” of misdemeanor assault for throwing a sandwich at a federal officer. The grand jury had also refused to indict Dunn for a felony.

In an even more intriguing development, Chief Judge Boasberg in D.C. is now free to move forward with potential contempt of court proceedings against Trump officials, following months of delay by the court of appeals. This involves allegations that administration officials violated Boasberg’s orders last March by continuing to fly Venezuelan detainees to a notorious prison in El Salvador after he ordered a halt and misled the judge about what was going on.

One potential defendant in any contempt proceedings would be Emil Bove, acting Deputy Attorney General at the time, who allegedly told prosecutors they may have to say “fuck you” to the court if they are ordered to stop the deportations. After being narrowly confirmed by the Senate, Bove is now serving as the newest judge on the U.S. Court of Appeals for the Third Circuit. If District Judge Boasberg ends up with Circuit Judge Bove as a defendant in his courtroom, that will be . . . interesting.

The Bove Nomination

Trump continues to seek to bulldoze the Constitution as though it were the East Wing of the White House. With a compliant Supreme Court and spineless Republican Congress there are relatively few institutions to stand in his way. But once again trial judges, the Bill of Rights, and the adversary system are giving us some reason for optimism.