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

I mean, I didn’t doubt it.

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

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

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

It lists the many rules Lindsey broke:

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

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

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

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

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

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

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

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

At least, “not at this time.”

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

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

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

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

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

There’s been an uptick this week in reporting on the role of health care subsidies in congressional budget negotiations.

Most Americans worry about health care costs: AP-NORC poll
By ALI SWENSON and LINLEY SANDERS | Updated 1:22 PM EDT, October 21, 2025
https://apnews.com/article/poll-shutdown-health-care-insurance-costs-trump-f0282a0f5bedf3f01172ed3fa0ba4fd2

Health insurance sticker shock begins as shutdown battle over subsidies rages
Many states have shown rising premiums ahead of open enrollment for Affordable Care Act plans. Congress is deadlocked over extending covid-era subsidies that bring costs down.
By Paige Winfield Cunningham | October 22, 2025 at 6:00 a.m. EDT
https://www.washingtonpost.com/health/2025/10/22/obamacare-aca-enrollment-price-increases/

Some Americans fear high health insurance premiums if ACA enhanced subsidies expire: ‘Very much a worry’
ACA enhanced premium tax credits are set to expire at the end of the year.
ByMary Kekatos | October 21, 2025, 10:51 AM
https://abcnews.go.com/Health/americans-fear-high-premiums-aca-enhanced-subsidies-expire/story?id=126613026

News media are finally telling us what many of us have already known: Trump’s GOP congressional caucus wants to kill Americans.

There are some GOP moderates who are pressing for some, well, moderation on health care subsidies because their constituents need the assistance.

Republican moderates press leadership on health credit extension
Millions of Americans in red states rely on subsidies to keep insurance costs down
By Sandhya Raman and Jessie Hellmann | October 22, 2025 at 12:36pm
https://rollcall.com/2025/10/22/republican-moderates-press-leadership-on-health-credit-extension/

And these moderates need their seats. Check the last graf of that RollCall article — it’s a who’s who of GOP seats in districts that are flippable.

In other words, the state of health care subsidies may mean control of the House.

Trump refuses to negotiate unless the government shutdown ends, but that means giving up the only leverage Democrats have since the moderate GOP reps have been unable to persuade Trump and the rest of the GOP House caucus to budge.

Meanwhile, reality is doing a number on Americans who rely on health care subsidies, including small business owners:

These kinds of rate increases mean households will be making choices between going without health care insurance or going without paying mortgages, skipping car payments, not making the rent, cutting back on groceries they haven’t already cut because of inflation.

Do the math:

— Median weekly earnings for wage and salary workers = $1196 / week
— Average rent for a one-bedroom apartment in the U.S. = $1631 / month
— “The USDA estimates $297–558 for a monthly food budget for one person, $614–963 for a couple, and $996–1,603 for a family of four.” (This number was reported in May 2025 and has surely risen since the underlying source report.)
— Average transportation cost per U.S. household = $819 / month

That’s just the basics and doesn’t include out-of-pocket health care expenses, or any other necessities like clothing. It’s extremely grim for minimum wage workers, and for those whose work fluctuates like freelance writers or seasonal contractors.

There’s almost nothing left or worse after rent and/or health care, and it will be worse in rural areas.

Imagine having to choose between feeding your kids and getting any necessary medication including insulin. Imagine trying to pay for prenatal care let alone delivery of a healthy child, and making the rent. Heaven help you if either you or the child suffer complications before/during/after birth.

For many of us this isn’t a thought experiment. It’s a painful reality. Some of us will have to work even longer to pay for health care, well beyond age 65; some of us are already dealing with this challenge, as Business Insider reports in these slice-of-life stories that tend to blame the victim (ex. Faber shouldn’t have been a farmer).

I’m 82 and earn $16 an hour working at a boat store. I don’t have much saved and can’t retire, but everything will work out.
https://www.businessinsider.com/cant-retire-working-at-80-social-security-minimum-wage-2025-10

A trucker in his late 70s who can’t afford to retire shares the big regret he made decades ago that may have changed his circumstances
https://www.msn.com/en-us/money/retirement/a-trucker-in-his-late-70s-who-can-t-afford-to-retire-shares-the-big-regret-he-made-decades-ago-that-may-have-changed-his-circumstances/ar-AA1HKHOP

These folks couldn’t save enough for retirement when health care costs were much lower. Today’s younger workers aren’t able to save much at all, not with inflation chipping away at all their expenses. We’ll be reading bleak stories of elderly who can’t retire for decades.

In essence, Trump and his GOP minions’ death panel have become Dickensian: “If they would rather die, …they had better do it, and decrease the surplus population.”

One might think this is the Trump-GOP’s approach to housing policy; if enough people go bankrupt, into foreclosure, or die, there will be more housing available.

It’s as destructive and thoughtless as taking a wrecking ball without a plan to the East Wing of the White House.

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

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

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

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

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

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

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

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

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

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

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

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

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

There were two competing letters published yesterday designed to frame Kash Patel’s efforts to frame Democrats with being mean to Donald Trump, for which (the NYT reports) Trump wants to be paid $230 million. They are:

• A letter Lanny Breuer sent to Chuck Grassley, scolding him for the irresponsible way Grassley fearmongered Jack Smith’s analysis of toll records affecting nine or ten members of Congress. (Zoe Tillman wrote about the letter here.)
• A letter Jim Jordan sent to Pam Bondi, effectively recycling debunked Kash Patel claims to support a claim that John Brennan lied about the Intelligence Community Assessment.

I’m a well-established critic of Lanny Breuer, but the letter is substantive and direct. After mocking Josh Hawley’s claim that he was “tapped,” the letter shows how toll records have been used in various other investigations:

• The Robert Hur investigation of Joe Biden.
• Charging documents in five different investigations charged since Kash has become FBI Director.
• In leak investigations, targeting Adam Schiff, Eric Swalwell, and staffers (including Kash Patel).
• The Robert Menendez investigation.

But all that’s just set up for this passage, mocking Kash for his claim, made on Sean Hannity’s show while he was wearing a ridiculous jacket, that Jack Smith was trying to hide his use of toll records in a “lockbox in a vault, and then put that vault in a cyber place where no one can see or search these files.”

[T]here is simply no support for FBI Director Patel’s recent assertion that Mr. Smith hid the toll records information so that “no one would find it,” or that Mr. Smith put the toll records in a “lockbox in a vault, and then put that vault in a cyber place where no one can see or search these files.”9 It is not clear what cyber place in a vault in a lockbox Director Patel is describing, but Mr. Smith’s use of these records is inconsistent with someone who was trying to conceal them. Paragraph 119 of the August 1, 2023 indictment describes some of the calls that were made to U.S. Senators on January 6, 2021, and footnote 132 of Volume 1 of the Special Counsel Report refers to the use of toll records in the investigation. Moreover, the precise records at issue were produced in discovery to President Trump’s personal lawyers, some of whom now serve in senior positions within the Department of Justice.

9 HANNITY: Patel: “We’re Just Warming Up” in Investigation of Alleged Tracking of GOP Senators, Fox News (Oct. 7, 2025), https://www.foxnews.com/video/6382234662112.

Even without this letter, sentient beings were able to point to the place in the indictment and the Jack Smith report where these toll records were described. And, as the letter notes, Trump’s attorneys — including Todd Blanche — got discovery on those toll records years ago, but did not challenge their use in a criminal case.

All this was quite clear to sentient beings. But not the staffers exploiting Chuck Grassley’s diminished capacities to make a stink about something very ordinary.

By comparison, the Jordan letter is shoddy even by his standards.

The ostensible purpose is to refer John Brennan to DOJ (but, significantly, not FBI) for testimony Brennan gave — in a hearing about the letter truthfully saying a bunch of spooks thought the Hunter Biden laptop had the hallmarks of a Russian information op — that mentioned the Steele dossier in passing. This may be an effort to predicate a case in DC after the case in Philly has stalled, but anyone aware of the law would question how comments about the Steele dossier were material to a hearing about the Hunter Biden letter, a point that Brennan even made at the time: “I don’t see any relevance to the Hunter Biden laptop issue now,” as quoted in Jordan’s letter.

More importantly, the letter appears to be an effort to launder debunked propaganda Kash Patel did years ago through Congress back into an investigation led by Kash Patel, something I’ve addressed in the past.

The key paragraph makes a number of claims, some of which are fabrications (and therefore commit the crime that Jim Jordan is referring), others of which are misrepresentations of prior reports that were themselves propaganda.

On January 6, 2017, the CIA, Federal Bureau of Investigation (FBI), and National Security Agency published a declassified version of an Intelligence Community Assessment (ICA) titled Assessing Russian Activities and Intentions in Recent US Elections. 3 The ICA stated, among other things, that Russia “developed a clear preference” for President Trump and “aspired to help” him win the election.4 This conclusion—now known to be false—was based in part on the Steele dossier, which “was referenced in the ICA main body text, and further detailed in a two-page ICA annex.”5 The Steele dossier was a series of reports containing baseless accusations concerning President Trump’s ties to Russia compiled and delivered to the FBI in 2016 by former British intelligence agent Christopher Steele.6 Subsequent investigations confirmed that the Clinton campaign and the DNC paid Steele via the law firm Perkins Coie and opposition research firm Fusion GPS to provide derogatory information about Trump’s purported ties to Russia, which resulted in the discredited dossier.7 In July 2025, the Trump Administration declassified numerous documents showing that the ICA’s main findings were false and that the Obama Administration knowingly fabricated the findings for the purpose of undermining the Trump Administration.8

3 OFF. OF THE DIR. OF NAT’L INTEL., ASSESSING RUSSIAN ACTIVITIES AND INTENTIONS IN RECENT US ELECTIONS (Jan. 6, 2017) [hereinafter “Russian Interference ICA”].

4 Id. at 1.

5 MAJORITY STAFF REPORT, H. PERM. SELECT COMM. ON INTEL., 116TH CONG., OVERSIGHT INVESTIGATION & REFERRAL: THE INTELLIGENCE COMMUNITY ASSESSMENT (ICA) “RUSSIA’S INFLUENCE CAMPAIGN TARGETING THE 2016 US PRESIDENTIAL ELECTION,” at 23 (2020) [hereinafter “HPSCI Report”].

6 See JOHN H. DURHAM, U.S. DEP’T OF JUST., OFF. OF SPECIAL COUNS., REPORT ON MATTERS RELATED TO INTELLIGENCE ACTIVITIES AND INVESTIGATIONS ARISING OUT OF THE 2016 PRESIDENTIAL CAMPAIGNS, at 11-12, 109-117 (2023) [hereinafter “Durham Report”].

7 See id. at 109-117; HPSCI Report, supra note 5, at 22-32; U.S. DEP’T OF JUST., OFF. OF THE INSPECTOR GEN., REVIEW OF FOUR FISA APPLICATIONS AND OTHER ASPECTS OF THE FBI’S CROSSFIRE HURRICANE INVESTIGATION, at v-xii (2019); Memorandum from HPSCI Majority Staff to HPSCI Majority Members, Re: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation (Jan. 18, 2018).

8 Sarah Bedford & Kaelan Deese, Russiagate definitive timeline: How new intelligence documents fit in, WASH. EXAM’R (July 26, 2025). [my emphasis]

The key claim in here — that what Jordan falsely says is the key claim of 2017 Intelligence Community Assessment, which he describes as, “that Russia ‘developed a clear preference’ for President Trump and ‘aspired to help’ him win the election,” is based on the Steele dossier — is based off two reports Kash substantially wrote (marked in blue). Never mind that it is only the key claim of the Intelligence Community Assessment if you have the thin skin of a Narcissist, never mind that any dispute is about how much evidence there was before discovering the June 9 meetings or Paul Manafort’s sharing of campaign information with Russian spies. That key claim had nothing to do with the subsequent investigation of Trump, which investigation had already been set into motion by Mike Flynn’s shitty OpSec.

But as I wrote extensively,  the one dated 2020, showing that Congressional Republicans packaged up older claims and Russian spycraft after the Mueller Report definitively showed the Russia did prefer Trump and Trump did welcome that help, is an attempt to create a time machine to go back to the halcyon time before we knew all that.

Jordan, perhaps wisely, doesn’t try to lay out how all this fits together. He outsources it to a right wing propaganda outlet, outsourcing to them their credulity about the time machine effect going on.

Jim Jordan lied, shamelessly, when he alleged that that claim was shown to be false. And he lied, shamelessly, when he said that a report that affirmatively did not incorporate intelligence from the Steele dossier, choosing instead to only link it and specifically say it was not incorporated into analytical work (which backs Brennan, not Jordan), instead relied on the dossier.

This conclusion—now known to be false—was based in part on the Steele dossier, which “was referenced in the ICA main body text, and further detailed in a two-page ICA annex.”

If the intimation that Kash Patel’s hand-picked investigators breached Jim Comey’s attorney-client privilege in service of this conspiracy bears out, it only adds to the list of corrupt and possibly illegal things Kash has done in pursuit of this witch hunt. And that’s before you consider all the cops and prosecutors that get fired along the way.

Kash Patel may well be in a race against time. He needs to package up things before Comey gets them all thrown out before Andrew Bailey becomes eligible to act as FBI Director bypassing confirmation, in mid-December.

Links

A Dossier Steal: HPSCI Expertly Discloses Their Own Shoddy Cover-Up

Think of the HPSCI Report as a Time Machine to Launder Donald Trump’s Russia Russia Russia Claims

Tulsi Gabbard and John Ratcliffe Reveal Putin “Was Counting on” a Trump Win

Tulsi Gabbard Teams Up with Russian Spies to Wiretap and Unmask Hillary Clinton

The Secrets about Russia’s Influence Operation that Tulsi Gabbard Is Still Keeping from Us

Tulsi Gabbard Accuses Kash Patel of Covering Up for the Obama Deep State

Since the invasion of an apartment building at 7500 S. South Shore on September 30, in the same week that Trump sent notice to Congress ostensibly authorizing his murderboat strikes in the Caribbean, I haven’t stopped thinking about this John Yoo opinion from October 2001.

It considers the legality of using military forces to combat terrorist threats inside the United States, with an extensive discussion about whether the Fourth Amendment would prevent the military from seizing and securing an entire apartment building — as CBP did in the September 30 raid — and detaining, searching, and interrogating everyone found inside.

The view that the Fourth Amendment does not apply to domestic military operations against terrorists makes eminent sense. Consider, for example, a case in which a military commander, authorized to use force domestically, received information that, although credible, did not amount to probable cause, that a terrorist group had concealed a weapon of mass destruction in an apartment building. In order to prevent a disaster in which hundreds or thousands of lives would be lost, the commander should be able to immediately seize and secure the entire building, evacuate and search the premises, and detain, search, and interrogate everyone found inside. If done by the police for ordinary law enforcement purposes, such actions most likely would be held to violate the Fourth Amendment. See Ybarra v. Illinois, 444 U.S. 85 (1979) (Fourth Amendment violated by evidence search of all persons who are found on compact premises subject to search warrant, even when police have a reasonable belief that such persons are connected with drug trafficking and may be concealing contraband). To subject the military to the warrant and probable cause requirement that the courts impose on the police would make essential military operations such as this utterly impossible. If the military are to protect public interests of the highest order, the officer on the scene must be able to “exercise unquestioned command of the situation.” Michigan v. Summers, 452 U.S. 692, 703 (1981).34

34 In a case decided not long after the end of the Civil War, the Supreme Court of Illinois reached similar conclusions. See Johnson v. Jones, 44 III. 142 (1867), 1867 WL 5117. This was an action in trespass brought by an alleged Confederate sympathizer in Illinois who had been arrested and imprisoned in a military fortress, purportedly on the authority of President Lincoln’s orders. The court rejected the defense that the plaintiff had been arrested as a belligerent and held as a prisoner of war. It did, however, state that had the plaintiff been a belligerent, “the order of the President was wholly unnecessary to authorize the arrest. Any soldier has the right, in time of war, to arrest a belligerent engaged in acts of hostility toward the government, and lodge him in the nearest military prison, and to use such force as may be necessary for that purpose – even unto death.” 1867 WL at ‘5. Further, although the court also rejected the defense that the arrest was justified as an exercise of martial law, it also stated that “[i]f a commanding officer finds within his lines a person, whether citizen or alien, giving aid or information to the enemy, be can arrest and detain him so long as may be necessary for the security or success of his army. He can do this under the same necessity which will justify him, when an emergency requires it, in seizing or destroying the private property’ of a citizen.” Id. at *7. In terrorist wars, unlike conventional warfare, there are of course no battle lines, and the theater of operations may well be in heavily populated urban settings. We think, however, that the same principle applies, and that a military commander operating in such a theater has the same emergency powers of arrest and detention.

As far as I’m aware, the memo was only used as an interim thought piece in 2001.

Rather than using the memo to seize entire office buildings, I believe it served as a basis to seize entire data streams and scanning all of it to search for “terrorist” content.

But the example Yoo envisioned years ago is not far off what we saw on September 30.

While subsequent reporting suggests that the raid arose out of a tip that the slum landlord who owns the building gave to the FBI (meaning, they used CBP as a means to clear the building they had refused to pay to secure), in execution, a number of aspects of the raid looks just like what the raid Yoo envisioned two decades ago.

The raid took place in the middle of the night; a warranted search would mandate permissible hours — usually after dawn — when the search could be conducted.

The entire raid was predicated on the presence of (initially) two and in retrospect just a single Tren de Aragua member. But virtually every one was detained while law enforcement searched for active warrants, and 37 people were arrested. With the exception of a few apartments, the entire building was searched, and left in a mess.

Federal agents pounded on the door of his South Shore apartment about 2 a.m. Tuesday.

“I told them they must have the wrong apartment,” the man said.

But armed agents busted open many doors after arriving in U-Haul trucks to raid the 130-unit apartment building at 7500 S. South Shore Drive. They woke up residents to handcuff them with zip ties and led them into unmarked vans.

Rodrick Johnson, a U.S. citizen, said he heard “people dropping on the roof” before FBI agents kicked in his door. He was stuffed inside a van with his neighbors for what felt like several hours until agents told them the building was clear, he said.

“They didn’t tell me why I was being detained,” Johnson said. “They left people’s doors open, firearms, money, whatever, right there in the open.”

A Department of Homeland Security spokesperson said federal agencies arrested at least 37 people in the operation at the building, which they claimed is frequented by members of Venezulan gang Tren de Aragua. About 300 federal agents, some landing on the roof from helicopters, descended upon the building, according to NewsNation, which was invited along for the operation.

The report didn’t mention women and children appear to be among the detained, said Brandon Lee, a spokesman with the Illinois Coalition for Immigrant and Refugee Rights. Organizers worry many people were taken without warrants.

“These were families with their children escorted out in the middle of the night,” Lee said. “This administration is using PR efforts to try to turn communities against their neighbors.”

Residents said the building had become home to Venezuelan migrants. The raid saw people’s apartments turned upside down, citizens held for hours and their neighbors taken away to unknown places. Belongings were stolen from apartments after the agents left the building open.

In other words, this raid looks just like what we would expect if Stephen Miller were applying already-dodgy John Yoo opinions targeting terrorists who really did launch a military style attack on the US, and applied it, instead, against a gang that Miller has lied persistently to turn into something greater than it is.

And if that doesn’t already terrify you, much of the rest of the opinion addresses the kinds of things Miller openly fever dreams about, such as the subjection of “loyal citizens, or persons who though believed to be disloyal have not acted overtly against the government, to deprivations that would under ordinary circumstances be illegal.”

State and federal court decisions reviewing the deployment of military force domestically by State Governors to quell civil disorder and to protect the public from violent attack have repeatedly noted that the constitutional protections of the Bill of Rights do not apply to military operations in the same way that they apply to peacetime law enforcement activities. Thus, the courts have explained that “[w]ar has exigencies that cannot readily be enumerated or described, which may render it necessary for a commanding officer to subject loyal citizens, or persons who though believed to be disloyal have not acted overtly against the government, to deprivations that would under ordinary circumstances be illegal.” Commonwealth ex rel. Wadsworth v. Shortall, 55 A. 952, 955 (Pa. 1903) (holding that in time of domestic disorder the shooting by a sentry of an approaching man who would not halt was not illegal). “[W]hatever force is requisite for the defense of the community or of individuals is also lawful. The principle runs through civil life, and has a twofold application in war – externally against the enemy, and internally as a justification for acts that are necessary for the common defense, however subversive they may be of rights which in the ordinary course of events are inviolable.” Hatfield, 81 S.E. at 537 (internal quotations omitted) (upholding the Governor’s seizure of a newspaper printing press during a time of domestic insurrection).35

Our view that the Fourth Amendment does not apply to domestic military operations receives support from federal court cases involving the destruction of property. In a line of cases arising from several wars, the federal courts have upheld the authority of the Government, acting under the imperative military necessity, to destroy property even when it belongs to United States citizens and even when the action occurs on American soil. Such destruction of property might constitute a seizure under the Fourth Amendment. Moreover, the courts have held, even if such seizures might otherwise constitute “takings” under the Fifth Amendment, the exigent circumstances in which they occurred absolve the Government from liability. The cases articulate a general rule that “the government cannot be charged for injuries to, or destruction of, private property caused by military operations of armies in the field.” United States v. Pacific R.R. Co., 120 U.S. 227, 239 (1887)” Although these decisions arise under the Fifth Amendment rather than the Fourth, we think that they illuminate the Government’s ability to “search” and “seize” even innocent United States persons and their property for reasons of overriding military necessity. For if wartime necessity justifies the Government’s decision to destroy property, it certainly must also permit the Government to temporarily search and seize it.

35 See also Powers Mercantile Co., 7 F. Supp. at 868 (upholding the seizure of a factory to prevent a violent attack by a mob and noting that “[u]nder military rule, constitutional rights of individuals must give way to the necessities of the situation; and the deprivation of such rights, made necessary in order to restore the community to order under the law, cannot be made the basis for injunction or redress”); Swope, 28 P.2d at 7 (upholding the seizure and detention of a suspected fomenter of domestic insurrection by the “military arm of the government,” noting that “there is no limit [to the executive’s power to safeguard public order] but the necessities and exigency of the situation” and that “in this respect there is no difference between a public war and domestic insurrection”) (emphasis added) (quotations and citation omitted); In re Moyer, 85 P. 190, 193 (Colo. 1904) (“The arrest and detention of an insurrectionist, either actually engaged in acts of violence or in aiding and abetting other to commit such acts, violates none of his constitutional rights.”); In re Boyle, 57 P. 706, 707 (Idaho 1899) (upholding the seizure and detention of a suspected rebel during time of domestic disorder).

36 See also Heflebower v. United States, 21 Ct. Cl. 228, 237-38 (1886) (“There is a distinction to be drawn between property used for Government purposes and property destroyed for the public safety. . . . [I]f the taking, using, or occupying was in the nature of destruction for the general welfare or incident to the inevitable ravages of war, such as the march of troops, the conflict of armies, the destruction of supplies, and whether brought about by casualty or authority, and whether on hostile or national territory, the loss, in the absence of positive legislation, must be borne by him on whom it falls, and no obligation to pay can be imputed to the Government.”).

We don’t yet know the full extent of justification for the abuses CBP engaged in on September 30. While I don’t follow the Chicago docket as closely as many, I’ve seen no more than two people who might have been arrested in the raid, and that off a warrant in another state.

Which is to say, we don’t yet know precisely what CBP imagined they were doing in the apartment building. We only know that it looks like Stephen Miller adopted one of John Yoo’s discredited bad ideas and tested it in practice.

It has taken longer than I expected, but the pardoned Jan6ers have begun to get back in legal trouble.

In May, Zach Alam (the guy who busted open the door through which Ashli Babbett jumped) was arrested and, last week, convicted, of larceny for a burglary in Henrico, VA.

In his opening statement, Alam said he had moved to Richmond after being lost in Washington, D.C. He claimed that after being abruptly evicted, he began looking for an Airbnb but had no phone service, and mistakenly entered the Smith family’s home instead.

The first person to discover Alam was the family’s son, a barber who had just finished work and gotten out of the shower. He found personal items spread across the guest-room bed with Alam standing there. When asked why he was in the house, Alam said he was with Xfinity to fix the Wi-Fi.

The Smith family testified that they were Verizon customers, not Xfinity. Once they realized Alam wasn’t who he claimed, they persuaded him to leave. Later that night, they discovered valuables missing, including a tablet and a diamond necklace, along with a broken window.

A neighbor told the family he’d seen Alam taking items from outside that same window.

That evening, Henrico Police located Alam less than two miles away. He never mentioned an Airbnb but told officers he was lost trying to take a train back to Washington, D.C.

[snip]

During cross-examination, Alam suggested to the Smith family that they weren’t being truthful about the burglary even asking the father whether he was sure he’d closed the door every time he went outside that day.

At one point, Alam asked Officer Minter whether the items found on him included the family’s missing tablet or necklace. When Minter began listing all the recovered objects, Alam interrupted: “Objection. Stop talking.”

Alam was always unbalanced; had he remained in prison he might have gotten badly needed treatment.

The case of Christopher Moynihan, who was arrested Sunday in New York after threatening to kill Hakeem Jeffries, is less predictable (though not in any way surprising).

Court documents obtained by CBS News said Christopher Moynihan was arrested Sunday after saying in text messages that he planned to “eliminate” Jeffries when the top House Democrat spoke at an event in New York City on Monday.

Jeffries spoke at the Economic Club of New York on Monday.

According to a court filing by prosecutors in the New York state criminal case, Moynihan wrote, “Hakeem Jeffries makes a speech in a few days in NYC I cannot allow this terrorist to live.”

Moynihan also allegedly stated: “Even if I am hated, he must be eliminated, I will kill him for the future,” the filing said.

Moynihan faces a felony charge of making a terroristic threat, according to court filings shared by prosecutors.

While FBI’s Joint Terrorism Task Force reportedly provided the lead to local cops, thus far these charges are state charges; Trump cannot pardon Moynihan this time.

Unlike Alam, Moynihan was not detained pre-trial nor charged with assault for January 6 (though he remains detained now).

After crowding in the East side of the Capitol and rushing directly to the Senate floor, he rifled through Ted Cruz’ desk, describing that he was looking for “something we can fucking use against these scumbags.”

Moynihan continued to search through the papers, growing frustrated, and saying “[t]here’s gotta be something in here we can f*cking use against these scumbags.”

[snip]

As he reviewed the documents, Moynihan said, “This is Cruz’s sh*t. This is a good one. Him and Lawler, or whatever. Hawley, Cruz.” Ex. 13 at :24 – :46; Ex. 14 at :30 – :51. Another rioter said, “I think Cruz would want us to do this.” Moynihan responded, “Yeah. Absolutely.” Ex. 14 at :53 – :54.

Along with everyone else who breached the Senate with the clear intent of obstructing the vote certification, Moynihan was charged with and convicted, in August 2022, in a stipulated trial of obstruction under 18 USC 1512(c)(2) — one of the same crimes with which Trump was also charged. He was sentenced to 21 months in prison in February 2023 — Judge Christopher Cooper recommended he get mental health and drug treatment while in prison. But he only served a year, after which he was released pending the SCOTUS opinion that would ultimately throw out the obstruction charges against many defendants.

Moynihan might have been one of the January 6 defendants against whom the obstruction charge might still have stuck — after all, he had paper relating to the vote certification in his hands and he explicitly sought to use that information against “these scumbags.”

But he was pardoned along with everyone else.

And now, he is repeating the same kind of eliminationist language about Democrats — calling Jeffries a terrorist — that Stephen Miller and Pam Bondi have been pushing of late.

It’s only a matter of time until one of Trump’s pardonees succeeds in carrying out the violence so many continue to support. And when that happens Trump and his lackeys will own that crime, too.

Updated: Added note that this is a state charge. Trump cannot pardon Moynihan out of it.

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

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

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

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

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

The unethical dickishness makes much more sense now.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

Along with his motions to dismiss because Lindsey Halligan was unlawfully appointed and for vindictive and selective prosecution, Jim Comey included a 60-page filing of all the mean things Donald Trump has said about him, dating from May 2, 2017 to September 27, 2025.

With very few examples, there’s very little that wasn’t already public:

• Lindsey the Insurance Lawyer’s appointment, showing that she was appointed under 28 USC 546, which Ed Whelan has argued is unlawful.
• A footnote describing that, “On October 15, 2025, the government confirmed to the defense that Person 1 refers to Hillary Clinton and Person 3 refers to Daniel Richman.”

There’s nothing (besides the appointment) hinting at what Comey received in discovery.

Curse you, Pat Fitzgerald!!!

That has the advantage of allowing Comey to submit everything in unredacted fashion (his response to the loaner prosecutors’ bid to breach his privilege did have key redactions). It likely also had the advantage of being mostly written by the time of the arraignment.

There are some interesting legal details, however, which also telegraph what Comey will file if these two, closely linked motions fail. One paragraph describes the way Lindsey the Insurance Lawyer misrepresented what he said to Ted Cruz five years ago, which the filing notes will become a motion to dismiss because what he said was literally true (the basis on which Judge Anthony Trenga dismissed one of five counts against Igor Danchenko).

The indictment misstates the exchange between Senator Cruz and Mr. Comey. Senator Cruz asked Mr. Comey to affirm or deny prior testimony that he authorized “someone else at the FBI to be an anonymous source in news reports about . . . the Clinton Administration.” But Hillary Clinton was not elected, and Senator Grassley’s original questioning in 2017 related to the “Clinton investigation.” See FBI Oversight Transcript at 5, Exhibit B. The indictment nonetheless mischaracterizes Mr. Comey as stating that he “had not ‘authorized someone else at the FBI to be an anonymous source in news reports’ regarding an FBI investigation concerning PERSON 1,” ECF No. 1 at 1 (emphasis added). Thus, the indictment replaces Senator Cruz’s reference to the “Clinton Administration” with a reference to “PERSON 1” (Hillary Clinton) and misleadingly attributes statements to Mr. Comey that he did not in fact make during his September 30, 2020, testimony. 8

Further, the indictment omits Senator Cruz’s words that explicitly narrow the focus of his questions to Mr. McCabe and misleadingly implies that the questioning related to Mr. Richman. In fact, Mr. Comey’s September 2020 exchange with Senator Cruz made no reference whatsoever to Mr. Richman, who ultimately appears in the indictment as PERSON 3. Instead, the context of the exchange confirms that Senator Cruz was asking about leaks by Mr. McCabe—indeed, Senator Cruz asked Mr. Comey whether he or Mr. McCabe was “telling the truth.” In other words, the indictment presents an inaccurate description of the testimony at the heart of this case.

8 Mr. Comey expects to move to dismiss Count One based on a defense of literal truth. See Bronston v. United States, 409 U.S. 352 (1973).

Another describes that, because Lindsey the Insurance Lawyer was unlawfully appointed, she had no business being in the grand jury.

To start, the government has flagrantly violated due process, equal protection, and the First Amendment by prosecuting Mr. Comey based on his protected speech and based on personal animus. Those acts alone satisfy the first factor. And there is more: The government effectuated the prosecution through a separate and independent willful violation—an unlawful appointment of a White House aide as interim U.S. Attorney.11 The government’s conduct is antithetical to fundamental constitutional principles and serves no legitimate governmental end.

11 The government also violated the Federal Rules of Criminal Procedure, which allow only “attorneys for the government” to be “present while the grand jury is in session,” Fed. R. Crim. P. 6(d)(1), and define such attorneys to include only “attorney[s] authorized by law to conduct” grand jury proceedings, Fed. R. Crim. P. 1(b)(1)(D) (emphasis added). Those rules implement the longstanding principle that grand jury proceedings must remain secret and thus reinforce that the unlawful appointment of Ms. Halligan tainted the structure of the grand jury proceeding. See United States v. Sells Eng’g, Inc., 463 U.S. 418, 424 (1983).

This is how the two motions work in tandem. The aberrant procedures used to install Lindsey the Insurance Lawyer is itself proof of vindictiveness.

The other interesting arguments address why this should be dismissed with prejudice — most notably (given the loaner prosecutors’ games with privileged communications) because if Judge Nachmanoff does not, they’ll try again in the next six months.

Finally, dismissal with prejudice is warranted because any other remedy would put Mr. Comey “at a greater disadvantage than [he] would have faced had the government” not violated the Constitution. Id. at 1043. In fact, dismissing the indictment without prejudice would reward the government for its last-minute installation of Ms. Halligan as interim U.S. Attorney and consequent manipulation of the statute of limitations. As noted, the statute of limitations on Mr. Comey’s purported offenses was set to expire just ten days after Ms. Halligan’s unlawful appointment. Had the Attorney General not appointed Ms. Halligan at the eleventh hour, there is no reason to believe that the indictment would have been filed within the limitations period. That timing is significant not only because it allowed the government to bring this prosecution, but also because the government will likely argue that the filing of the indictment tolls the limitations period under 18 U.S.C. § 3288. And if this Court were to dismiss without prejudice, the government will likely argue that it has six months from the date of dismissal to file a new indictment. See id.12 The government would thus be in a better position than it would have been but for its constitutional violations. And Mr. Comey is in a worse position because he faces criminal prosecution, rather than experiencing the repose of an expired limitations period.

12 Mr. Comey disputes that reading of Section 3288. But for present purposes, the important point is that the government can at least argue that Section 3288 allows it to file a new indictment if this case is dismissed without prejudice—thus prolonging this deeply flawed case.

There’s very little fucking around here.

There’s no hint whether and if so how much of the earlier documents (like the declination decisions by Bill Barr and John Durham or even the 302s from those prosecutors) prosecutors even gave Comey in discovery.

We don’t even get to hear about Kash Patel’s well-documented malice!

We might have to wait to see that for Maurene Comey’s lawsuit.

A filing in the Jim Comey case bearing the name of Lindsey Halligan claims that it is very important to disclose conflicts as early as possible.

1 “[Bo]th the Sixth Amendment and the Virginia Rules of Professional Conduct invite, indeed compel, prosecutors to alert a trial court to a defense attorney’s potential or actual conflict.” United States v. Cortez, 205 F. Supp. 3d 768, 775 (E.D. Va. 2016) (emphasis added) (Ellis, J.); see also United States v. Howard, 115 F.3d 1151, 1155 (4th Cir. 1997) (Wilkinson, C.J.) (noting that a district court “has an obligation to foresee problems over representation that might arise at trial and head them off beforehand”).

Only, the filing is not disclosing conflicts that Halligan, the Trump personal defense attorney turned unlawfully appointed US Attorney who didn’t identify her client at the arraignment, might have.

Rather, in a bid to accelerate consideration of the loaner prosecutors’ filter request (which I wrote about here), it insinuates that Pat Fitzgerald has a possible conflict on this case. As it describes, some of the communications that (it all but confirms) Dan Richman designated as privileged back in 2019 include Fitzgerald.

Relevant to this motion, the attorney has informed the government that the quarantined evidence contains communications between the defendant and several attorneys. The current lead defense counsel appears to be a party to some of these communications.

To turn that into a potential conflict, the loaner prosecutors (and probably also James Hayes, who again shows as the author of the document, but who has not filed a notice of appearance in the case) wildly misrepresent the DOJ IG Report on Jim Comey’s retention of the memos he wrote memorializing his conversations with Trump.

[T]he defendant used current lead defense counsel to improperly disclose classified information.2

2 See U.S. Department of Justice (DOJ) Office of the Inspector General (OIG), Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02, (August 2019), (located at https://web.archive.org/web/20250818022240/https://oig.justice.gov/reports/2019/o1902.pdf, last accessed October 19, 2025).

(They provide a Wayback Machine link, because Trump killed the DOJ IG site in his bid to kill the main Inspector General organization.)

While the IG Report describes that Comey sent Fitzgerald four of the memos — which Comey believed to be unclassified — he sent the memo that Richman shared for this NYT story separately, meaning the report does not substantiate the claim that Fitzgerald was in the loop on that story.

May 14, 2017

Comey sends scanned copies of Memos 2, 4, 6, and 7 from his personal email account to the personal email account of one of his attorneys, Patrick Fitzgerald. Before sending, Comey redacts the second paragraph from Memo 7 involving foreign affairs because Comey deems it irrelevant. On May 17 Fitzgerald forwards these four Memos to Comey’s other attorneys, David Kelley and Richman.

May 16, 2017

Comey sends a digital photograph of Memo 4 (describing the meeting in which Comey wrote that President Trump made the statement about “letting Flynn go”) to Richman via text message from Comey’s personal phone. Comey asks Richman to share the contents, but not the Memo itself, with a specific reporter for The New York Times. Comey’s stated purpose is to cause the appointment of a Special Counsel to ensure that any tape recordings that may exist of his conversations with President Trump are not destroyed. Richman conveys the substance of Memo 4 to the reporter. The New York Times publishes an article entitled “Comey Memo Says Trump Asked Him to End Flynn Investigation.”

[snip]

As described in this section, on May 14, 2017, Comey transmitted copies of Memos 2, 4, and 6, and a partially redacted copy of Memo 7 to Fitzgerald, who was one of Comey’s personal attorneys. Comey told the OIG he thought of these Memos as his “recollection recorded,” like a diary or personal notes. Comey also said he believed “there’s nothing classified in here,” and so he thought he could share them with his personal attorneys.

And even using the FBI classification review of the memos he shared rather than Comey’s own review (he was an Original Classification Authority), he shared just six words, classified “Confidential” with his attorneys, and Richman didn’t share that information with Mike Schmidt.

FBI conducts a classification review of Comey’s Memos. The FBI determines that Comey correctly classified Memo 1 (which Comey did not share with anyone outside the FBI); that Memos 4, 5, and 6 are unclassified but “FOUO”; and that portions of Memos 2, 3, and 7 are classified, as follows:

Memo 2: Six words from a statement by President Trump comparing the relative importance of returning telephone calls from three countries, one of which the Memo notes the President mentioned twice, are classified as “CONFIDENTIAL//NOFORN.” Comey did not redact this information before sharing Memo 2 with his attorneys.

Memo 3: Information about sources, methods, investigative activity, and foreign relations is classified as “SECRET//NOFORN.” Comey did not share Memo 3 with anyone outside the FBI.

Memo 7: An assessment of a foreign leader by President Trump and discussion of foreign relations is classified as “CONFIDENTIAL//NOFORN.” Comey redacted this paragraph before he sent Memo 7 to his attorneys.

As Comey’s response notes, in a subsequent FOIA, a judge determined just one word was Confidential.

6 The portion of the memorandum the review team determined should be classified as “Confidential” concerned the President’s reference to then National Security Advisor Michael Flynn’s questionable judgment in not having notified the President sooner of a call from the leader of a particular country. (Report at 44). In that context, President Trump compared certain countries to a smaller country and the upclassification treated the name of a smaller country as classified for fear of offending that country. (Id. at 44-45). Mr. Comey’s reaction to the upclassification was: “Are you guys kidding me?” (Id. at 47). A federal court in unrelated litigation brought under the Freedom of Information Act (“FOIA”) ultimately rejected all but one of the subsequent classifications. (Id. at 3 n.4; 47 n.78; 58 n.100 (citing Cable News Network, Inc., v. FBI, 384 F. Supp. 3d 19, 25-26, 36, 38 (D.D.C. 2019))). The classification of the memorandum has been addressed in subsequent litigation and the single word that remains “CONFIDENTIAL” is the name of a single country.

That is, even Richman didn’t release classified information here. There’s even less to suggest Fitzgerald did.

The loaner prosecutors (and James Hayes) just made that up. Which is what Comey noted in a response.

[T]he government’s effort to defame lead defense counsel provides no basis to grant the motion.

[snip]

[T]here is no good faith basis for attributing criminal conduct to either Mr. Comey or his lead defense counsel. Similarly, there is no good faith basis to claim a “conflict” between Mr. Comey and his counsel, much less a basis to move to disqualify lead defense counsel.

Their goal in doing so is now clear: They want to get details of what Richman said while representing Comey after Richman had left and Comey was fired from the FBIm a time period that is irrelevant to charges pertaining to what Richman did as an FBI employee.

And to do that, they’re treating the Comey Memos as akin to some kind of grand insurance fraud (the common crime behind the precedent they’re invoking to conduct a highly invasive privilege review), when it was quite legitimately something you would do — sharing your own memorialization of sensitive events — with a lawyer. Which is probably why, per the original filing, Comey plans to challenge the warrant to get to that material.

Their filing is at least disingenuous about something else. They claim they need Judge Nachmanoff to make a decision about this quickly so that they can meet their trial deadlines.

Prompt implementation of the filter protocol is necessary in this case so the current trial milestones are maintained and met. This has been a point of emphasis from the Court. This desire is also shared by the government.

Here, the potentially protected material could contain exculpatory or inculpatory evidence relevant to the defense and the government. Currently, the government is not aware of the contents of the potentially protected material. As a party to some of the communications contained in the potentially protected material, the defense necessarily has awareness.

But this bid for a filter team already necessarily disrupts the trial deadlines.

As I pointed out here, the current schedule — especially the “the fastest CIPA process you have ever seen in your lives” that Judge Nachmanoff ordered at the arraignment — presumes that Fitzgerald will get clearance quickly.

The schedule proposed by the parties assumes that attorney Patrick Fitzgerald receives his security clearance, or interim clearance, within a reasonable time, and that all the classified materials to be reviewed are made available to the defense within a reasonable time.

You don’t agree to that CIPA schedule and then decide you want to kick Fitzgerald off the case. At that point, you’re effectively fucking with Comey’s Speedy Trial right. If you, as prosecutors, are compelled to identify conflicts, you’re compelled to do so before you build an entire trial schedule around there not being one.

And you especially don’t get to do that when this material has been in DOJ custody since 2019.

If there were reason to believe the discussions that Comey memorialized about Trump’s attempt to kill the Russian investigation included evidence of a crime, Bill Barr would have pursued it back in 2020. He didn’t.

And yet now the loaner prosecutors want to delay Comey’s trial so they can make a mad bid to get material that was clearly privileged.