Now that Magistrate Judge William Fitzpatrick has ordered that prosecutors provide Jim Comey with the grand jury transcripts, along with all the evidence they used in their latest filing, which they had not provided to Comey beforehand, let’s return to the saga of the missing grand jury transcripts, shall we? Because they get closer to implicating Pam Bondi in misleading the court.

As I laid out here, on October 28, Judge Cameron McGowan Currie ordered prosecutors to give her all the transcripts of Lindsey the Insurance Lawyer’s actions in the grand jury. On October 31, DOJ delivered a package to her. Yesterday, Judge Currie ordered prosecutors to deliver what she had actually asked for: “remarks made by the indictment signer both before and after the testimony of the sole witness” during the presentment of the indictment the jury accepted, as well as “transcripts regarding the presentation of the three-count indictment” that the grand jury no-billed.

“Upon receiving this order” (which would have been yesterday, November 4), according to a new filing from Tyler Lemons, “the government immediately contacted the transcription service and requested the complete recording.” And then “the government requested that the transcription service transcribe the entire recording, which had not been done previously.” It provided those materials, for the first time recording the things Lindsey the Insurance Lawyer had done in the grand jury — both during the presentment where the grand jury rejected one of the counts, and before and after the presentment where they approved the indictment — today.

But that means, that When Attorney General Pam Bondi ratified what Lindsey the Insurance Lawyer had done on October 31 …

In addition, based on my review of the grand jury proceedings in United States v. Corney and United States v. James, I hereby exercise the authority vested in the Attorney General by law, including 28 U.S.C. § 509, 510, and 515, to ratify Ms. Halligan’s actions before the grand jury and her signature on the indictments by the grand jury in each case.

… (using the same transcripts that were delivered to Judge Currie), those transcripts didn’t reveal what Lindsey the Insurance Lawyer had done.

At all!

This means two things:

First, that Pam Bondi in fact has not ratified anything Lindsey the Insurance Lawyer did, because she could not have reviewed any of it. DOJ did not yet have the recording, much less a transcript.

And it means that Pam Bondi ratified what Lindsey the Insurance Lawyer did, seemingly seeing precisely what Judge Currie did: the transcripts actually excluded everything Lindsey the Insurance Lawyer had done.

Remember how, 72-hours ago, I wrote an interminable post about how this Comey case may be about more than just two charges filed back in September?

I argued, among other things, that Comey may have asked for grand jury transcripts not (just) because getting them in December would help him win a vindictive prosecution claim that’ll be heard a month earlier, but because one of the now-three judges involved in the case might see the validity of his argument, and order the government to provide him those transcripts now.

[W]hat these filings may do — especially the grand jury one — is affect several things going on, starting this week.

As noted, Judge Cameron McGowen Currie has ordered the government to give her the transcripts from both grand juries by tomorrow.

The undersigned has been appointed to hear this motion and finds it necessary to determine the extent of the indictment signer’s involvement in the gra.nd jury proceedings. Accordingly, the Government is directed to submit, no later than Monday, November 3, 2025, at 5:00 pm, for in camera review, all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.

It’s genuinely unclear why she needs them, but it’s possible that by laying out Comey’s concern about privileged material in the grand jury, that will affect Judge Currie’s review.

Comey noted that Currie had already asked for these transcripts (which Nachmanoff surely noticed, since she did so in his docket).

Indeed, Judge Currie has already ordered the government to produce for in camera review “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.” ECF No. 95. Mr. Comey has argued that if Ms. Halligan alone secured and signed the indictment, dismissal would be required because she was unlawfully appointed.

Comey will not prevail on his motion for the grand jury transcripts until after the vindictive prosecution motion is briefed. But there’s nothing to stop Nachmanoff from making the same request that Currie did, to receive the transcripts for in chambers review. Similarly, there’s nothing to prevent William Fitzpatrick, the Magistrate Judge who’ll hold a hearing on the privilege question this Wednesday, to do the same.

Today, William Fitzpatrick did just that. (ABC; Politico; CNN; WaPo)

By Politico’s description, loaner AUSA Tyler Lemons’ explanation of the potential spill in September appears to have been no more convincing today than it was in his reply brief, which I wrote about here.

Tyler Lemons, an assistant U.S. attorney brought in from North Carolina to assist Halligan with the case, responded to the judge. He said investigators reviewing the search warrant materials anew just days before Comey’s indictment halted the process after stumbling upon information they thought might have been subject to Comey’s attorney-client privilege with Richman. He said the materials are now “isolated on a desk in FBI headquarters.”

Lemons added, “We’re not going to touch this evidence until the court approves it.”

The magistrate judge said prosecutors are not permitted to look at the material themselves until the court has resolved any potential privilege claims. He said that prosecutors could continue to use evidence it believes is not privileged in court filings, but that they do so “at their own risk.” If they inadvertently use privileged material in their filings, he said, it could lead to consequences for the entire case.

ABC’s story suggests more concerns over the access itself being a Fourth Amendment violation, regardless of whether it was privileged or not. That seems to be why he ordered the government to share — by close of business tomorrow — not just the grand jury transcripts, but the material seized from Dan Richman five years ago, which the government has inexplicably not yet turned over.

But Comey’s attorneys raised separate concerns that by using those materials at all, the government may have violated Comey’s rights — not just by reviewing potentially privileged information, but also by revisiting evidence obtained by warrants that would now be considered stale.

Judge Fitzpatrick appeared to agree with those concerns during Wednesday’s hearing, as he repeatedly pressed Assistant U.S. Attorney Tyler Lemons over what materials the government had reviewed and why the disputes over privilege were not settled during the more than five years that the government had those communications in its possession

Fitzpatrick, citing what he described as “unusual” behavior by the Justice Department and the quickly approaching January trial date, ordered the government to hand over “all grand jury materials” related to its investigations of Comey by Thursday at 5 p.m. ET — an urgent deadline that reflected Fitzpatrick’s concern over the government’s conduct.

The big underlying issue though — the request that first precipitated this proceeding — was their demand for quick review of potentially privileged material that likely dates from the period after Donald Trump fired Jim Comey. DOJ has had this material for years, at least six months of which came when Bill Barr was aggressively pushing this investigation, yet they’ve never asked to breach these privilege claims before.

Which elicited the comment from Fitzpatrick that has made all the coverage, here, from ABC.

“We’re in a bit of a feeling of indict first, investigate second,” Magistrate Judge William Fitzpatrick said in a motions hearing in Alexandria, Virginia.

It’s not dissimilar to what a different Magistrate Judge, André Espionosa, said less than six months ago, when dismissing the charges against Newark Mayor Ras Baraka.

The hasty arrest of Newark Mayor Ras Baraka , followed swiftly by the dismissal of these trespassing charges a mere 13 days later, suggests a worrisome misstep by your Office . An arrest , particularly of a public figure , is not a preliminary investigative tool . It is a severe action, carrying significant reputational and personal consequences, and it should only be undertaken after a thorough , dispassionate evaluation of credible evidence .

It’s precisely that commitment to rigorous investigation and thoughtful prosecution that has 20 characterized the distinguished history of your Office, Mr. Demanovich [the AUSA whom Alina Habba sent in her stead], particularly over the last two decades. The bench and the bar have witnessed in that period, the diligence and care demonstrated by prior U.S. attorneys in New Jersey, whose leadership has consistently upheld the highest standards of prosecutorial ethics and professionalism Their legacy is one of careful deliberate action where charges were brought only after exhaustive evidence gathering and a thorough consideration of all facts That bedrock principle, consistently honored by your predecessors, is the foundation upon which the credibility and effectiveness of your Office rests.

So let this incident serve as an inflection point and a reminder to uphold your solemn oath to the people of this District and to your client, Justice itself, and ensure that every charge brought is the product of rigorous investigation and earned confidence in its merit, mirroring the exemplary conduct that has long defined your Office.

The apparent rush in this case, culminating today in the embarrassing retraction of charges, suggests a failure to adequately investigate, to carefully gather facts, and to thoughtfully consider the implications of your actions before wielding your immense power. Your Office must operate with higher standard than that.

To be sure, I don’t think they were reconsidering charging Comey.

Rather, I suspect they were hoping for a better theory of charges. I suspect they hope to bring follow-on charges to build their fever dream.

But they’ve been caught once again not doing the work of prosecutors.

Update: Holy hell. Per NYT, prosecutors hadn’t even turned over the stuff released in their Opposition to Comey’s vindictive and selective prosecution motion.

The judged grilled one of Ms. Halligan’s deputies, Nathaniel Lemons, over prosecutors’ release of material in recent days, including private text exchanges intended to cast Mr. Richman and Mr. Comey in unflattering light in an otherwise quotidian court filing. He asked whether prosecutors had given Mr. Comey an opportunity to review such material first to challenge their release.

When Mr. Lemons said he had not offered Mr. Comey’s lawyers access to the material, obtained in several search warrants as part of an internal investigation of leaks in the Russia case during the first Trump administration, the judge chided him for placing an “unfair” burden on the defense.

That would undoubtedly be a violation of the discovery order, which required everything material to be turned over by October 13.

I listened to the arguments at the Supreme Court over Trump’s tariffs (my live tweet of John Sauer and the plaintiffs), with John Sauer arguing for Trump, Neal Katyal arguing for the small businesses that sued, and Benjamin Gutman arguing for Democratic states that sued.

The primary argument comes down to Katyal’s emphasis: that because tariffs raise revenues, they are part of Congress’ power.

Sauer was stuck, over and over again, attempting to argue that the intent of these tariffs was not to raise revenue, it was to encourage capacities in the US. Eventually, someone (either Katyal or Amy Coney Barrett rescuing him on the difference between licenses and tariffs) pointed out that the government had already bragged in declarations that they planned to make $4 trillion from the tariffs.

No one talked about coffee, or anything else that the US has no ability to replace. Katyal did raise Switzerland, with which we have a trade surplus. Sonia Sotomayor raised the silly tariffs on Brazil for hold Jair Bolsonaro to account.

Even Sammy Alito all-but conceded that there was no real emergency here, the basis on which Trump has accrued the power to impose taxes. “Would you have the same suspicion that President trying to achieve a goal other than the raising of money,” in case of an undisputed emergency. Kavanaugh came in a few minutes later raising the India tariffs, asserting blindly that the purpose of them was to end the Russian war (no one asked why Trump set tariffs on India first or why he didn’t just impose sanctions).

I don’t bank lots on my impression of how arguments went. John Roberts was mostly silent, but when he did weigh in, it was always in ways fairly devastating for that argument. My guess, then, is that the women plus Justice Roberts, plus maybe Neil Gorsuch, will rule against Trump, though don’t hold me to it.

There were several other interesting parts of the discussion though. There was the discussion of what happens if plaintiffs win. It came up several times, but close to the end, ACB asked Katyal how reimbursement will work. He sort of answered it wasn’t his problem; he represents six fairly minor plaintiffs, not a Class. It would be a much bigger problem for the states, which probably make up half of imports to the US. Plus, as Bloomberg laid out, other businesses have, in recent days, been suing in order to accelerate the process of getting reimbursed. There was even a reference to, maybe Congress can straighten this out.

This Congress?!?!

The point being, we’re at the point of Trump 2.0, in what may be — now appears to be likely to — be the first area where the Court reverses one of Trump’s abusive power grabs. And it has to be a consideration of how to unfuck the problems Trump caused because courts (in this case, lower courts, but usually, it’s the Supreme Court) allowed Trump to continue abusing power while matters were litigated.

Another concern, and even Sammy Alito expressed it (!!!!), was whether Congress could ever claw back the authority to tariff if it is lost here.

The questions that resonated the most came from Gorsuch (though I suspect he sounded more gung ho against the government in arguing against Sauer than he necessarily is). At one point, he tried to get Sauer to see the risk that a Democratic President would just impose huge tariffs to address a climate change emergency. Sauer pretty much dodged that question, stating that this Administration would declare it a hoax, but that would be of not interest if he weren’t in the Administration.

But even before that Gorsuch pointed out that if Congress could trade away its authority to tax, they could trade away their authority to declare war.

Again, I’m not sure my read of Gorsuch has much salience. But we are at the stage — as Trump continues to murder-bomb people on a three degree of separation in an undeclared not-war not-drug action — where a right wing Justice asks whether Congress can cede their most fundamental authorities.

And where another one asks how we start to unfuck the damage Trump has already done.

Yesterday, Reuters reported that the Inspector General for FHFA, which oversees Fannie and Freddie, got fired by the White House yesterday.

The ouster of Joe Allen, FHFA’s acting inspector general, follows the agency’s director, Bill Pulte, becoming an outspoken voice in support of the Trump administration. Across the government, the Trump administration has so far fired or reassigned close to two dozen agency watchdogs, who police waste, fraud and abuse. It has also defunded the group that supervises those offices.

The report attracted little notice; Reuters even notes that this is just one among dozens of IG firings. But this firing may blow up sooner rather than later.

That’s because Allen was preparing to share information with EDVA prosecutors.

Lindsey Halligan, the interim U.S. attorney for the Eastern District of Virginia who was hand-picked for the job by Trump, subsequently indicted James after her predecessor declined to do so, citing a lack of evidence.

Allen received notice of his termination from the White House after he made efforts to provide key information to prosecutors in that office, according to four sources. The information he turned over was constitutionally required, two of them said, while a third described it as being potentially relevant in discovery.

His ouster also came about as he was preparing to send a letter to Congress notifying lawmakers that the FHFA was not cooperating with the inspector general’s office, three of the sources said. These individuals said the FHFA director would typically have been notified of such a letter. Reuters was unable to independently determine whether Pulte was informed.

By the end of the day, the Loaner AUSA in the Letitia James case had submitted a letter stating they would not comply with Judge Jamar Walker’s order, issued during the arraignment, that they turn over evidence on selective and vindictive prosecution.

A grand jury returned a two-count indictment against Defendant on October 9, 2025. Doc. 1. Defendant’s Initial Appearance and Arraignment occurred on October 24, 2025. Doc. 24. At that hearing, the Court ordered Defendant to file her motion to dismiss based on vindicative/selective prosecution by November 7, 2025. Hear’g Tr., 23:18-20. It also indicated its expectation “that the discovery associated with this potential first motion needs to be frontloaded . . . .” Id. at 23:14-16. Consistent with this Court’s instruction, the Government provided newspaper articles to Defendant’s counsel. Defendant’s counsel also indicated that he intends to request substantial discovery from the Government.

The Government provides notice of its intent not to provide vindictive/selective prosecution-related discovery prior to Defendant’s motion because the law does not “allow[ ] a defendant to have discovery on the government’s prosecutorial decisions [until] the defendant . . . overcome[s] a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct. The standard is a ‘rigorous’ one.” Wilson, 262 F.3d at 315 (quoting Armstrong, 517 U.S. at 468). Until Defendant meets her threshold requirements, the Court’s instruction to produce any vindictive/selective prosecution-related discovery is premature.

The letter specifically describes that Rule 16 discovery does not include internal government reports made by government agents in connection with the case — something that would be covered by any review that FHFA’s IG did of this and other Bill Pulte referrals.

FED. R. CRIM. P. 16(a)(2) underscores the limitation to “defense” as it “exempts from defense inspection ‘reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case.’”

The filing is not dissimilar from a letter prosecutors sent in the LaMonica McIver case, telling McIver’s attorneys they would not abide by Judge Jamal Semper’s August 26 order to meet and confer about selective and vindictive evidence.

The Government has reviewed your letter of September 3, 2025 detailing the specific discovery requests sought in conjunction with your client’s motion to dismiss based on selective prosecution and enforcement, and vindictive prosecution. As we discussed during our Zoom call yesterday, we believe that the discovery sought in your September 3rd letter is not covered by Rule 16. Discovery in support of selective prosecution and selective enforcement claims is not provided as a matter of right, and we do not believe your client has satisfied the applicable threshold evidentiary showings required by Amstrong/Bass and Washington to compel discovery. We therefore believe that Judge Semper should first rule on your client’s motion for discovery, which we will oppose, and we will revisit the discovery demands outlined in your letter should the Court grant her request.

And while Semper ruled that prosecutors have to provide McIver the communications from Delaney Hall to her, they otherwise appear to have gotten away with this stance.

But two things may lead to a different outcome here.

First, by firing Allen, the White House has made the firing itself an issue, not unlike the Erez Reuveni firing did in the Kilmar Abrego case. At the very least, this news report will add to the bases to claim vindictive prosecution.

But also because Attorney General James shares an attorney, Abbe Lowell, with Lisa Cook. No one has charged Lisa Cook yet — maybe they never will; but nevertheless she has a date at the Supreme Court in January. And that may have the effect of putting several issues before the Court at once (the lawsuit by a bunch of Inspectors General fired at the beginning of Trump’s term is stayed pending all these other cases).

None of that’s to say that SCOTUS will reverse course on letting presidents (or at least this one) fire everyone put in place to exercise some oversight.

[NB: check the byline, thanks. /~Rayne]

With the election yesterday of Millennial Zohran Mamdani as New York City’s mayor, generational change in Democratic Party politics has shifted more firmly away from Boomers.

With the youngest Boomers in their mid-60s, it’s time — not to mention other reasons like a lifetime of baggage impeding effective governance.

This is an open thread with an emphasis on state and local elections. More details about elections across the country will be published here as updates throughout the day. In the mean time, discuss election results in your state and municipality here; what are the implications of the elections’ results, and what blowback might we expect? What effects may these elections have on the 2026 mid-term elections?

On October 28, Judge Cameron McGowan Currie — the senior South Carolina Judge who’ll preside over Jim Comey and Tish James’ challenges to Lindsey Halligan’s appointment — instructed the government to give her the 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.

On October 30, Jim Comey submitted a motion describing all the reasons it might be useful for him to see those transcripts, too.

Although those motions must be decided on their own merits, the circumstances described in both motions raise a strong possibility that there were “irregularities in the grand jury proceedings” that would provide a “basis for dismissal of the indictment.” Nguyen, 314 F. Supp. 2d at 616 (citations omitted). Indeed, Judge Currie has already ordered the government to produce for in camera review “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.” ECF No. 95. Mr. Comey has argued that if Ms. Halligan alone secured and signed the indictment, dismissal would be required because she was unlawfully appointed.

[snip]

For similar reasons, disclosure of the grand jury materials is reasonably calculated to provide additional support for Mr. Comey’s argument that he would not have been prosecuted but for President Trump’s animus toward Mr. Comey, including because of his protected speech.

On October 31, the government delivered a package of grand jury transcripts to Judge Currie.

Only, they didn’t include “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.”

Judge Currie exhibited remarkable patience when instructing DOJ, for the second time, to give her all the transcripts.

On October 28, 2025, the undersigned entered an order directing the Government to submit, for in camera review, “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.” ECF No. 95. On Friday, October 31, 2025, the court received a package containing, inter alia, a “Transcript of Grand Jury proceedings on September 25, 2025.” This court has reviewed the transcript and finds it fails to include remarks made by the indictment signer both before and after the testimony of the sole witness, which remarks were referenced by the indictment signer during the witness’s testimony. In addition, the package contains no records or transcripts regarding the presentation of the three-count indictment referenced in the Transcript of the Return of Grand Jury Indictment Proceedings before the Magistrate Judge.

Did DOJ really think Currie is stupid enough for this to work?

What makes all of this exceptionally stupid, though, is that Pam Bondi described reading the transcripts before she ratified the prosecution back on October 31, the same day the transcripts mysteriously weren’t all delivered to Judge Currie.

In addition, based on my review of the grand jury proceedings in United States v. Corney and United States v. James, I hereby exercise the authority vested in the Attorney General by law, including 28 U.S.C. § 509, 510, and 515, to ratify Ms. Halligan’s actions before the grand jury and her signature on the indictments by the grand jury in each case.

So whatever it is that led someone to withhold the most important parts of the Jim Comey transcript, Pam Bondi is now complicit in it.

And all of that will make it more likely that Judge Michael Nachmanoff will himself review the transcripts to see what all the fuss is about.

I want to congratulate Loaner AUSA Tyler Lemons, who after confessing that Kash Patel’s FBI had violated Jim Comey’s Fourth Amendment rights on Sunday, went on to lay out why Comey is right to demand a Bill of Particulars on Monday. As NYT quipped,

the prosecutors who wrote the filing spent as much time suggesting that Mr. Comey had used the confidant, Daniel C. Richman, a law professor at Columbia University, as a conduit to the news media as they did seeking to reject allegations that the indictment was vindictive.

The introduction is one page. The conclusion is 30 words. And before the 25-page discussion competently addressing Comey’s vindictive and selective prosecution claim, the brief spends 15 pages trying to claim that this prosecution caught Jim Comey lying and obstructing an investigation that would merit charges.

Mostly, though, it demonstrates that poor Tyler Lemons can’t sort out what it is he is prosecuting.

Lemons establishes the need to include transcripts omitted from the indictment

Start with transcripts. The government motion itself includes:

• A transcription of Jim Comey’s May 3, 2017 exchange with Chuck Grassley (before he released a memo describing Trump’s misconduct)
• A transcription of an exchange Comey had on June 8, 2017 with Susan Collins describing sharing that memo through Richman
• A transcription of the September 30, 2020 exchange Comey had with Ted Cruz that is charged as Count One of the indictment

In footnotes to the first,

6 The transcript attached to the defendant’s motion non-substantively corrects Senator Grassley’s second question. See C-Span, User Clip: Sen. Grassley Questions James Comey (May 3, 2017), https://www.c-span.org/clip/senate-committee/user-clip-sen-grassley-questions-jamescomey/4853218.

And third transcriptions, Lemon makes observations about the inaccuracy of transcripts Comey included as exhibits to his vindictive and selective motion (Grassley, Cruz) — though neither were transcripts Comey himself produced.

9 The transcript attached to the defendant’s motion non-substantively corrects Senator Cruz’s questions and the defendant’s first answer; the transcript also erroneously adds the word “that” to Senator Cruz’s final question and omits the word “is” from the same question. See, e.g., POLITICO, Archive: Sen. Ted Cruz questions James Comey on Trump and Clinton investigation leaks (Sept. 26, 2025), https://www.politico.com/video/2025/09/26/archive-sen-ted-cruzquestions-james-comey-on-trump-and-clinton-investigation-leaks-1759922.

But Lemons relegates the transcription of the exchange between Comey and Graham from the September 30, 2020 hearing to an exhibit, thereby facilitating his effort to hide that Graham’s question was about a September 7, 2016 CIA referral, and not about the Russian fabricated Clinton plan generally.

The transcriptions of the Grassley-Comey and Cruz-Comey exchange that Comey included in his literal truth motion do not include the inaccuracies Lemons noted. But as a footnote explained, Comey relied primarily on the video he submitted with that exhibit.

For the rest of this brief, references to the exchange between Mr. Cruz and Mr. Comey cite to the Oversight Hearing Video Clip, which provides the most accurate depiction of the exchange. But the Oversight Hearing Transcript is a useful reference as well.

But as Comey notes in his vindictive motion, his literal truth motion, and his request for a Bill of Particulars motion, the indictment itself misquotes the exchange and in no way identifies what specifically Comey lied about.

the text of Count One both misstates the testimony Mr. Comey actually gave and misquotes the question posed by Senator Ted Cruz. See Mot. to Dismiss Indictment Based on Vindictive & Selective Prosecution, ECF No. 59 at 15; Mot. to Dismiss Based on Fundamental Ambiguity & Literal Truth at 2-4.

So as charged, Comey is being prosecuted for an exchange that didn’t happen the way Lindsey the Insurance Lawyer claimed it did. Comey has asked for accurate specifics, and Lemons emphasized the inaccuracies of what is out there.

Lemons can’t distinguish between the investigations and leaks at issue

Now consider the claimed structure of that passage and what it actually says. Doing so reveals that Lemons doesn’t understand what he’s referring to (or, worse, deliberately misrepresents it).

A. The defendant’s service as FBI Director and the Midyear Exam investigation. (pages 2-4)

This section summarizes the declination part of the DOJ IG Report on Midyear Exam. While this section notes that Trump fired Comey (it doesn’t say on what date in May 2017 Trump did so), it doesn’t admit that the ostensible purpose Trump gave for firing Comey pertained to Comey’s treatment of Hillary, not his refusal to shut down the Russian investigation … an oversight (and Mueller evidence) that Comey now has cause to raise in his Reply.

B. The defendant’s correspondence with Daniel Richman—and Richman’s correspondence with the press—regarding the Midyear Exam investigation. (pages 4-8)

This section starts with a description of Dan Richman, describing him as, “a Columbia Law School professor who also served as an FBI Special Government Employee since 2015.” Nowhere does Lemons mention that Richman’s SGE appointment was lapsed at least as late as October 27, nor that Richman left the FBI on February 7, 2017.

It then spends 2.5 pages describing correspondence Comey had with Dan Richman in advance of this NYT flowchart, citing these exhibits:

• January 2, 2015: Letter stating that Richman would not comment on matters he “work[s] on for the Bureau”
• October 29, 2016: Text saying, “The country can’t seem to handle your finding stuff”
• October 30, 2016: Richman offering to write an op-ed for NYT
• November 1-2, 2016: Comey suggests perhaps Richman can make Mike Schmidt smarter
• November 2, 2016: Richman noting story about Hillary

Then it spends a page describing correspondence relating to this article, the article at the core of Arctic Haze. But it does so backwards. It first describes Comey’s April 23, 2017 email thanking Richman for what he said — on the record — in it. Then it describes emails Richman sent on February 11, 2017, four days after FBI claims he left FBI, soliciting Chuck Rosenberg’s involvement in what would be the April 23 story. There’s no mention of Comey’s involvement, in advance, in that story.

And then, still under the heading of articles about Midyear Exam, Lemons describes texts between Mike Schmidt and Richman, between May 11 and 16, about Comey’s firing, specifically referencing the dinner at which Trump demanded Comey’s loyalty. Those text messages culminate in the publication of this story, “Comey Memo Says Trump Asked Him to End Flynn Investigation,” the story first revealing that Trump asked Comey to let the Flynn prosecution go.

C. The defendant’s disclosure of memoranda concerning meetings with the President and his pertinent Senate testimony. (pages 9-12)

Having already described the publication of the story about the memos, Lemons then describes Comey’s testimony in 2017 about them. He describes Comey telling Grassley on May 3, 6 days before he was fired and 8 days before the Schmidt and Richman texts start, that he had not asked anyone to serve as an anonymous source in news stories about the Clinton or Trump investigations (note, on that day there was no Trump investigation, there was an investigation into others). He describes Comey, three weeks after the story (Lemons doesn’t provide the date, June 8, which is important context to the next section showing Trump wailing about “leaks”) truthfully telling Susan Collins that he asked a friend to share the memo with a reporter.

COMEY: I asked—the president tweeted on Friday [May 12], after I got fired, that I better hope there’s not tapes. I woke up in the middle of the night on Monday night, because it didn’t dawn on me originally that there might be corroboration for our conversation. There might be a tape.

And my judgment was, I needed to get that out into the public square. And so I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a friend of mine to do it.

Which he immediately follows with Ted Cruz’ questions from 2020, as if Richman sharing the memos could be responsive (much less material) to Ted Cruz’ question about asking someone at the FBI to share stuff anonymously.

D. The President’s concern with the defendant’s official conduct. (pages 12-14)

The next bit is central to the Loaner AUSAs’ claim that Trump wasn’t prosecuting Comey for his opposition but instead out of a legitimate concern about leaks. A one page description of Trump’s obsession with what he claimed were Comey’s leaks treats the Richman memos as a leak, even though Comey admitted to releasing them within a month.

Shortly after the defendant was fired, the President began to publicly express his concern that the defendant had leaked (or authorized the leak of) investigative information and had given false or misleading testimony to cover it up. For example, on May 31, 2017, he referenced “the false or misleading testimony by James Comey.” Def. Mem., Dkt. No. 59-4 at 2. On June 9, he posted, “Comey is a leaker!” Id. Two days later, he posted, “I believe the James Comey leaks will be far more prevalent than anyone ever thought possible. Totally illegal?” Id. In July, he reposted a news report stating, “Report accuses material James Comey leaked to a friend contained top secret information.” Id. In October 2017, he posted that “James Comey lied and leaked and totally protected Hillary Clinton.” Id. at 3. In March 2018, the President posted, “Wow, watch Comey lie under oath to Senator G when asked ‘have you ever been an anonymous source … or known someone else to be an anonymous source…?’ He said strongly ‘never, no.’ He lied as shown clearly on @foxandfriends.” Id. at 6.

This passage is triply misleading.

First, sharing the memos was anonymous at first, but it was not a leak, Comey admitted to it within a month, and it was investigative mostly insofar as it predicated an investigation into Trump. It became investigative because Trump fired Comey.

Second, as noted, through the structure of this section, Lemons does a number of things to falsely suggest this could be the charged lie, when it could not, for several different reasons I’ll explain below.

Most importantly, it ignores the nine complaints Trump made about Comey, listed in Comey’s 60 page exhibit of those complaints, before the first one listed in the response, which started with a claim (debunked by the exhibits in this motion) that “Comey was the best thing that ever happened to Hillary Clinton,” to say nothing of Trump’s “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press,” to which the memo release was a response.

E. The defendant’s public posts about President Trump. (page 14)

The next section attempts to show that Trump was concerned about Comey’s “leaking” (that is exposure of Trump’s misconduct) before Comey said anything bad about Trump — but I’m very confused how this sentence — “his motion shows his first social-media post speaking out about the Trump administration (not the President directly) came in June 2017, over a month after he was fired—and after the President had publicly posted about his “false or misleading testimony” — is consistent with Comey giving testimony about Trump’s misconduct and Comey’s accurate prediction Trump would lie about it on June 8, 2017, exactly a month after he was fired (in the hearing in which he told Collins about the memos). Maybe I just don’t understand. Or maybe in his desperation to sell a narrative, Lemons is lying to the court about the substance of Comey’s testimony.

This has the effect of making the memos the chicken and the egg of this investigation, which nevertheless could not be included in either charge against Comey.

F. Law enforcement’s investigations into unauthorized public disclosures. (pages 14-15)

Having already confessed he doesn’t know what a leak is and doesn’t know what FBI employ is, Lemons then introduces his desperate attempt to claim that receiving a briefing that might be about what we now know is Russian disinformation 19 days after not receiving a memo about it that probably emphasizes something else should be recalled when Lindsey Graham asked about it in specific reference (a reference Lemons buries) to memo redacted in a way that would obscure its import.

I will return to this section’s description of the 18 USC 2071 investigation trying to criminalize the non-removal of documents from the FBI as removal from the FBI. (!?!?!) Apparently, on July 21, 2025, Jack Eckenrode and Miles Starr decided that leaving a bunch of documents that were already preserved in FBI servers in an inventory room amounted to removal. Mostly it’s an attempt to indulge Kash Patel’s stupidest conspiracy theories.

But the important point, for the purpose of this filing, is that, under the heading promising information about “unauthorized public disclosures,” Lemons falsely claims an investigation into what would, if true, be an effort to bury evidence, was instead an investigation into sharing it.

G. Appointment of U.S. Attorney Halligan and the indictment. (pages 15-17)

And that’s important because the excuse Lemons offers for the hiring of Lindsey Halligan is Trump’s obsession with wildly inaccurate propaganda about the release of the Arctic Haze file, which leads directly from a John Solomon article treating the NYT article about the Hillary investigation as if it pertained to Russia.

On August 13, 2025, the President posted a link to a Fox News segment with the text, “DOCUMENTS REVEAL JAMES COMEY ASSOCIATE LEAKED CLASSIFIED INFORMATION TO THE NYT.” Donald J. Trump (@realDonaldTrump), TruthSocial (Aug. 13, 2025 at 12:42 ET). 12 The next day, he posted a link to a news article discussed in the segment. Donald J. Trump (@realDonaldTrump), TruthSocial (Aug. 14, 2025 at 7:02 ET). 13 The article detailed FBI documents recently disclosed to Congress and indicated that Richman had admitted “that he was given access by Comey to what turned out to be highly classified information up to the SCI level and sometimes provided information to reporters on an anonymous basis.” John Solomon and Jerry Dunleavy, Comey’s media mole told FBI he shaped Russia narrative, needed ‘discount’ to deny leaking intel, Just the News (Aug. 12, 2025).14 On September 20, 2025, the President posted:

Pam: I have reviewed over 30 statements and posts saying that, essentially, “same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.” Then we almost put in a Democrat supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so. Lindsey Halligan is a really good lawyer, and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT

None of this actually helps Lemons, because it suggests Trump hired Halligan specifically to open an investigation into an already declined prosecution.

But it does create a narrative, one Lemons uses to claim that Trump was not out to get Comey because Comey disclosed Trump’s fundamental corruption, but instead because Comey leaked classified information, a claim not backed by a single thing in this filing.

Indeed, what the filing does, in part, is prove that Trump falsely accused Comey of leaking classified information for years, without anything to back that claim.

In Section A, Lemons declines to address that Trump ostensibly fired Comey because of the Hillary investigation, not the Russian one. In Section B, Lemons treated a story about the Trump’s misconduct as instead about Hillary investigation. In Section D, he pretended Trump was concerned about leaking rather than being exposed as corrupt. In Section F, Lemons misrepresents a bogus cover-up claim as instead a leak investigation. In Section G, Lemons relies on a John Solomon post confusing the Hillary investigation with the Russian investigation.

The guy who plans to present all this to a jury in a few months appears unable to distinguish between the Hillary investigations (remember, the Andrew McCabe sourcing Ted Cruz asked about was about the Clinton Foundation, not the emails) and the Russian investigation, which Lemons exacerbates by imagining that the Russian investigation was always about Trump.

Lemons may already recognize that Lindsey the Insurance Lawyer charged the wrong things (which is why Comey’s request for grand jury transcripts is merited).

None of these stories match the elements of the offense

The problem for Lemons is that none of these scenarios fit the elements of the offense for the crimes charged.

For the 18 USC 1001 charge, prosecutors need to prove that Comey knowingly lied about a leak about Hillary he authorized Richman to share anonymously while he was at the FBI.

As a threshold matter, Comey will be able to argue the charges cannot survive, because the hearing scope did not include the Hillary investigations.

1 Before the hearing, the committee agreed that it would be limited to four specific topics: (i) “Crossfire Hurricane,” (ii) the December 2019 Department of Justice Inspector General report’s “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation,” (iii) the Carter Page FISA applications, and (iv) Christopher Steele’s source network and primary sub-source.

So any story about Hillary is, by definition, outside of scope.

The only one of these stories where there’s some evidence that Comey authorized a story about Hillary in which Richman was not named was the November 2016 one. Even by then, however, the FBI was trying to fix Richman’s Special Government Employee.

As for the 18 USC 1505 charge, prosecutors will need to prove that Comey told lies that were intentional that impeded that investigation. Because of the scope of the hearing (and therefore the investigation), they can’t argue the two Hillary stories are material. Comey was aware of the scope of the hearing and Hillary wasn’t part of it.

There’s no way they can argue that Comey should have admitted asking Richman to serve as an anonymous source for the May 2017 story impeded the Senate investigation, because he had admitted that years earlier!!

That leaves just the Lindsey Graham question, which was specifically about whether Comey remembered the CIA referral, dated September 7, that Kash Patel had recently released in redacted — and therefore likely hopelessly misleading — form. As the transcript Lemons buries in an exhibit makes clear, the question — the one the grand jury no-billed — was not whether Comey was briefed; it was whether he recalls getting the document itself (Lindsey misstates what this document even was).

Lindsey: Do you recall getting an inquiry from the CI, excuse me, the intelligence community in September, 2016, about a concern that the Clinton campaign was going to create a scandal regarding Trump and Russia?

Mr. Comey: I do not.

Senator Graham: You don’t remember getting a investigatory lead from the intelligence community, hang on a second … Let me find my document here.

Speaker 3: There it is.

Senator Graham: September the Seventh, 2016, the US intelligence officials forwarded an investigative referral to FBI Director James Comey and Assistant Director of Counterintelligence Peter Strzok regarding US presidential candidate Hillary Clinton’s approval of a plan concerning US presidential candidate Donald Trump and Russian hackers hampering US elections as a means of distracting the public from her use of a private email server. You don’t remember getting that or being talk, that doesn’t …

Mr. Comey: That doesn’t ring any bells with me.

Lemons makes much of the fact that a copy of the referral was found in a storage room at FBI where other Durham materials were found; he claims to have evidence that it was once in the FBI Director’s office (but does not date when that was). That fact will face admissibility problems given Jack Eckenrode’s role in all that, which will in turn elicit questions why Eckenrode continues to base his investigations on what he discovered four years ago was Russian disinformation.

Poor Loaner Lemons will be forced to explain why Brennan was briefing Comey on a topic Comey had been informed of 19 days earlier, and why Comey would write that down as if it were news.

It will not be a slam dunk proving that the reference, HRC plan to tie Trump, pertains to the same SVR documents that the referral did. I know how I would do it. But I also know how a focus on “undermine HRC” just above that will make it easy to present this reference as Brennan (presumably) said he understood it–to be a reference to the victimization of Hillary, meaning Graham’s description of it would unrecognizable to Comey. As this reference appears, it backs Brennan’s conception of how most of the IC (aside from the Cyber Agents who fucked up the Alfa Bank Spectrum Health investigation) viewed this reference, as an attack on Hillary.

Ultimately, the defense to treating this as the basis for the obstruction charge (which I suspect it is) is to lay out how painfully wrong right wingers have been about what happened in 2016 from the start.

In Lemons’ bid to claim there was basis to charge Comey, he instead made it quite clear that none of his claimed issues match the charges as charged.

Which is to say, he made an exceptionally good case that Comey has reason to wonder what the fuck he is actually charged with.

I had been wondering if Dick Cheney were unwell given Liz Cheney’s silence.

He died yesterday.

Amid the chaos of the Trump Administration, implementing all of Cheney’s dreams of unitary executive on Chicago’s residents and Latin American fishermen, his death didn’t even make it above the fold of the NYT.

This blog has written probably 500 stories on Dick Cheney — about torture, about illegal surveillance, about drone strikes, about outing Valerie Plame.

But the most recent are telling for his legacy:

Tulsi Gabbard’s NIE Lies Make Dick Cheney Look Honest by Comparison

John Yoo’s Old Trash and the South Shore Apartment Invasion

Dick Cheney’s Apprentice Strikes (on John Bolton’s refusal to testify in impeachment)

Child Rapist George Nader Introduced Dick Cheney and Ahmad Chalabi

We never did recover from the things Dick Cheney did to the United States. And now the precedents he established have empowered a madman.

Lindsey Halligan’s Loaner AUSAs have submitted their responses to Jim Comey’s initial motions, which I’ve laid out below.

The Tl;dr of the response to the observation that Lindsey was not lawfully appointed (DOJ submitted the same motion in both Comey and Tish James’ case) is that Lindsey was lawfully appointed even though two judges had said she wouldn’t be by the time she was appointed, and if not, then the indictments are still valid because Pam Bondi retroactively appointed Halligan to be a very Special Attorney on Halloween.

No.

Really.

The response to the vindictive and selective prosecution spends a lot of time saying that Lindsey didn’t vindictively prosecute Trump, and Donald Trump’s animus to Jim Comey wasn’t about his First Amendment speech, but about Trump’s claim that Comey leaked information, when the filing doesn’t actually show that Comey did that at all.

Not only that, the filing makes clear the problems with DOJ’s case that Comey lied about authorizing Dan Richman to share information.

None of the times Richman served as a source fit the criteria of Ted Cruz’ question (that is, from when Richman was at FBI, speaking about the Clinton investigation, anonymously, with Jim Comey’s involvement ahead of time).  The closest was for this flowchart regarding Jim Comey’s decision to announce he had reopened the investigation into Hillary’s emails — the act that cost Hillary the election.

The next day, Mr. Richman sent the defendant an email regarding an op-ed he had been asked to write for The New York Times about the defendant’s letter. Gov. Ex. 5 (Oct. 30, 2016 emails). Mr. Richman stated that he was “not inclined” to “write something,” but that he would “do it” if the defendant thought it would “help things to explain that [the defendant] owed cong absolute candor,” and that the defendant’s “credibility w cong w[ould] be particularly important in the coming years of threatened cong investigations.” See id. The defendant responded: “No need. At this point it would [be] shouting into the wind. Some day they will figure it out. And as [Individual 1 and Individual 2] point out, my decision will be one a president elect Clinton will be very grateful for (although that wasn’t why I did it).” See id. The defendant appears to have reconsidered that view shortly thereafter. On November 1, 2016, he emailed Mr. Richman, stating:

When I read the times coverage involving [Reporter 1], I am left with the sense that they don’t understand the significance of my having spoke about the case in July. It changes the entire analysis. Perhaps you can make him smarter.

Let’s imagine the Times had a policy against writing new articles close to elections if the articles might influence the election. Consistent with that policy they would avoid writing this week if sources told them that the FBI was looking at Huma Abedin’s emails.

But let’s imagine that they wrote a very high profile piece in July that sources lead them to now conclude was materially inaccurate. Would they correct it or stay silent because they have a policy to avoid action near elections?

I suspect they would quickly conclude that either course is an “action” and the choices are either reporting or concealing but there is no longer a “neutral” option because of the reporting in July. I also suspect they would resolve very quickly to choose the action of disclosing because to remain silent is to actively mislead, which has a wide range of very bad consequences.

Why is this so hard for them to grasp? All the stuff about how we were allegedly careful not to take actions on cases involving other allegations about which we have never spoken is irrelevant. I love our practice of being inactive near elections. But inactivity was not an option here. The choices were act to reveal or act to conceal.

See Gov. Ex. 6 (Nov. 1–2, 2016 emails) (emphases added).

Mr. Richman responded the next day, stating: “This is precisely the case I made to them and thought they understood. I was quite wrong. Indeed I went further and said mindless allegiance to the policy (and recognition that more evidence could come in) would have counseled silence in july to let hrc twist in the wind.” See id. Mr. Richman emailed the defendant shortly thereafter, writing, “Just got the point home to [Reporter 1]. Probably was rougher than u would have been.” See id.

The defendant emailed Mr. Richman shortly thereafter, entitling the message “Pretty good” and sending a link to a New York Times piece regarding the defendant’s purported options in late October 2016 concerning the Clinton email investigation (Midyear Exam). See Gov. Ex. 7 (Nov. 2, 2016 email chain); Matt Apuzzo and Sergio Peçanha, These Are the Bad (and Worse) Options James Comey Faced, N.Y. Times (Nov. 2, 2016). 4 The defendant wrote: “Someone showed some logic. I would paint the cons more darkly but not bad.” See Gov. Ex. 7 (emphasis added). Mr. Richman responded: “See I *can* teach.” See id. The defendant replied: “Well done my friend. Who knew this would. E so uh fun.”5 See id. (emphasis added).

But the conversation between Richman and Comey is about logistics, not Hillary. Moreover, since it’s a flowchart, it’s not like Richman could be an anonymous source (and the conversation took place in context of doing an overt op-ed).

Additionally, it’s not even clear whether Richman was formally at FBI on that date. His “reappointment,” which had expired in June 2016, was pending as of October 27.

The other examples regarding Hillary postdate the date — February 7, 2017 — Richman left FBI (in the first case, only by four days, but not in a way that reflected Comey’s foreknowledge).

The Loaner AUSAs obscure that this happened after Richman left by not mentioning the date.

For example, in February 2017, Richman emailed Individual 3, a then-government official who had served in high-ranking positions at the FBI and DOJ. Mr. Richman wrote: “Hi [Individual 3] – my pal at the NYT, [Reporter 1] is (along with [Reporter 2], [Reporter 3], and (gag me) [Reporter 4]) is doing a huge piece on the HRC emails. He’s had a ton of background conversations with players and non-players (like me). [Reporter 1] very much would like to talk to you exclusively on background as he tries to understand[] Jim’s decision making to the extent possible. [Reporter 1] asked me to reach out to you. Hence this email. Would you be willing to chat with him?” See Gov. Ex. 9 (Feb. 11, 2017 email chain) (emphasis added). Individual 3 replied in the affirmative and stated that he would “reach out” to the reporter. See id.

The memos’ attempt to prove Comey lied about having received this memo is even sillier.

It claims that an investigative team that included Jack Eckenrode found the memo that Jack Eckenrode could never prove that FBI received as part of the Durham investigation in the storage unit in WDVA FBI Headquarters.

Among the records found were many related to the FBI’s Mar-a-Lago search, the January 06 capitol breach, the Crossfire Hurricane investigation, as well as a copy of the Classified Appendix to the John Durham Special Counsel investigation. Moreover, an additional record discovered as part of this management review process was an original referral by the Central Intelligence Agency (CIA) to former FBI Director James Comey, known as a Counterintelligence Operational Lead (CIOL). This CIOL, believed to have been missing for several years, was dated September 07, 2016 and contained certain intelligence related to the 2016 U.S. presidential election campaign. The CIOL was found in a storage closet adjacent to the Director’s office and was subsequently transported to the 9582 SCIF. Former Director Comey previously testified before the Senate Judiciary Committee that he was unfamiliar with this CIOL as well as its related intelligence.

On top of the wildly inappropriate notion of putting the guy who conducted a witch hunt in charge of validating when evidence supporting his witch hunt happened, this memo doesn’t describe when the memo was moved (and therefore whether it ended up in the FBI Director’s closet under Wray’s tenure), and it sounds like the original from the CIA, still doing nothing to prove it was ever sent to the FBI.

Crazier still, the filing presents Jim Comey’s notes recording (probably) John Brennan briefing Comey on something that might be the content of the CIOL or might be something else entirely … 19 days after FBI allegedly received the CIOL, on September 26, 2016.

In other words, they make a better affirmative case that Comey didn’t receive the CIOL on September 7 than that he did, because if the Brennan briefing on September 26 is about the same topic, why would Brennan have to brief Comey? And we know Brennan believed this was about hacking Hillary, not about a nefarious plot Hillary had.

The Loaner AUSAs obscure that Lindsey’s question was not about that information, but about the CIOL dated September 7, this way:

The discovery of the handwritten notes is relevant considering the defendant’s prior testimony on September 30, 2020. Of note, during that hearing, the defendant was questioned by Senator Graham of South Carolina and Senator Hawley of Missouri. See Gov. Ex. 14. The questions focused on whether the defendant remembered “being taught” of “U.S. presidential candidate Hillary Clinton’s approval of a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private email server.” See id. The defendant responded by stating that “it doesn’t ring any bells with me” and “I don’t know what that refers to” and “I don’t remember receiving anything that is described in that letter.” See id. at 1 and 5. Despite this testimony, the defendant’s handwritten notes dated September 26, 2016, read: “HRC plan to tie Trump.” See Gov. Ex. 13 (Defendant’s handwritten notes).

The actual vindictive and selective prosecution language — the entire filing is attributed to a Loaner AUSA from South Carolina, Kathleen Stoughton, who I guess is on loan to the Loaner AUSAs who signed it — is fine.

If you ignore that the Attorney General of the United States believes she can salvage Lindsey’s appointment and this prosecution by making her into a pumpkin on Halloween Day.

Update: I’ve corrected where the burn bags were found. They were found in FBI HQ in DC, which makes the predication of an investigation in WDVA even weirder.

Links

Response unlawful appointment

• Pam Bondi’s Halloween declaration that Lindsey was dressed up as a very Special Attorney all this time

Response vindictive and selective

• January 2, 2015: Letter stating that Richman would not comment on matters he “work[s] on for the Bureau”
• September 26, 2016: Notes from meeting, including about “cuts” on HRC plan to tie Trump
• October 29, 2016: Text saying, “The country can’t seem to handle your finding stuff”
• October 30, 2016: Richman offering to write an op-ed for NYT
• November 1-2, 2016: Comey suggests perhaps Richman can make Mike Schmidt smarter
• November 2, 2016: Richman noting story about Hillary
• February 11, 2017: Richman referring Mike Schmidt to Chuck Rosenberg
• April 23, 2017: Letter about Mike Schmidt’s story
• May 11, 2017: Texts with Mike Schmidt about Comey’s firing
• July 21, 2025: Opening memo for 18 USC 2071 investigation

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.