Comey Wins Access to Grand Jury Records as Judge Slams Probe (2)

The Justice Department’s indictment of James Comey was riddled with problems that may give the former FBI director legal grounds to have it dismissed, a federal judge ruled on Monday.

“The record points to 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,” US Magistrate Judge William Fitzpatrick wrote in a blistering ruling Monday.

Federal prosecutors swiftly took steps to contest Fitzpatrick’s order, filing an emergency request several hours later seeking to pause deadlines to produce materials to Comey’s lawyers while they press a challenge before the US district judge handling the case.

Comey, who has had an adversarial relationship with President Donald Trump, has been seeking the dismissal of federal charges that he allegedly lied to Congress and engaged in obstruction related to testimony he gave in 2020. He is one of several of Trump’s perceived foes to have been investigated or indicted for alleged crimes recently.

Fitzpatrick took the rare step of awarding Comey and his defense team access to all grand jury materials associated with his indictment.

“The court recognizes this is an extraordinary remedy, but given the factually based challenges the defense has raised to the government’s conduct and the prospect that government misconduct may have tainted the grand jury proceedings, disclosure of grand jury materials under these unique circumstances is necessary to fully protect the rights of the accused,” according to the ruling.

Fitzpatrick is a magistrate judge, not the primary judge overseeing Comey’s case. Magistrate judges are appointed by the court they serve in and their decisions generally can be appealed to the district court judge handling the case.

The Justice Department declined to comment.

Fitzpatrick ordered the court clerk to make all of the grand jury materials that the government filed under seal available to Comey’s lawyers by Monday afternoon, and for the government to share the audio recording of the grand jury proceedings with the defense.

None of those materials will be public for now.

In the government’s request to pause Fitzpatrick’s deadlines, prosecutors wrote that his order was “contrary to law” and “may have misinterpreted some facts.”

Read More: Trump Foes Comey, James Dispute Prosecutor’s Authority in Court

In his ruling, Fitzpatrick cited 11 potential missteps in the process to obtain the indictment against Comey, which was led by Lindsey Halligan, who was appointed as interim US attorney for the Eastern District of Virginia.

Trump abruptly installed Halligan to the position in September after her predecessor resigned under pressure to bring charges against Comey and another of his perceived foes, New York Attorney General Letitia James. Halligan was the sole prosecutor who went before the grand jury to obtain indictments against Comey and James.

Halligan had no previous experience as a federal prosecutor or in handling Justice Department cases before she was appointed. Comey and James have been arguing that her appointment to the position was unlawful.

Fitzpatrick questioned whether the Justice Department had authority to rely on materials obtained by previous search warrants, including in particular communications that may have been privileged because they were between Comey and his lawyer.

The circumstances “establish a reasonable basis to question whether the government’s conduct was willful or in reckless disregard of the law,” Fitzpatrick wrote.

Halligan’s presentation before the grand jury may also have been flawed.

“The facts establish a reasonable basis for the defense to challenge whether privileged information was used, directly or indirectly, by the government to prepare and present its grand jury presentation,” according to the ruling.

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Halligan also made statements to grand jurors “that could reasonably form the basis for the defense to challenge whether the grand jury proceedings were infected with constitutional error,” according to the ruling.

The magistrate judge raised a concern about the timeline of the grand jury’s indictment of Comey in late September, and whether it suggested that Halligan failed to properly present the final version of the charging document to jurors before submitting it to the court.

The grand jury had rejected one of three counts against Comey in the original version presented to them. Fitzpatrick wrote that a second version without the failed count was ultimately presented in court. But he said it wasn’t clear how Halligan had time to re-draft it and formally put it before the grand jury during a roughly seven-minute period after she learned they’d only returned a “true bill” on two counts.

If Halligan didn’t follow the complete process to present the revised indictment to the grand jury, that would put the court in “uncharted legal territory” and potentially give Comey more grounds to contest the prosecution, the magistrate wrote.

(Updates with the government’s response.)

To contact the reporters on this story:
Chris Strohm in Washington at cstrohm1@bloomberg.net;
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Elizabeth Wasserman, Anthony Aarons

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