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Spill! The EDVA Case against Jim Comey Could Well Harm the Even More Corrupt SDFL Case

It looks increasingly likely that because someone snuck a peek into Jim Comey’s privileged communications — or, because Tyler Lemons cares enough about his bar license that he disclosed that someone snuck a peek into Comey’s privileged communications — Comey may get a ruling that the government violated his Fourth Amendment rights, throwing out some of the material used in the government’s filing laying out the theory of their case.

The exhibits to that filing which were seized from Dan Richman include a bunch of communications sent from two different Columbia University emails, as well as texts sent on Richman’s phone.

January 2, 2015: Letter stating that Richman would not comment on matters he “work[s] on for the Bureau” [1st Columbia email]
October 29, 2016: Text saying, “The country can’t seem to handle your finding stuff” [2nd Columbia email]
October 30, 2016: Richman offering to write an op-ed for NYT [2nd Columbia email]
November 1-2, 2016: Comey suggests perhaps Richman can make Mike Schmidt smarter [2nd Columbia email]
November 2, 2016: Richman noting story about Hillary [2nd Columbia email]
February 11, 2017: Richman recruiting Chuck Rosenberg for article [1st Columbia email]
April 23, 2017: Email to Richman thanking him [Columbia email]
May 2017: Texts between Schmidt and Richman [Dan Richman’s phone]

As Rebekah Donaleski described the warrants in Wednesday’s hearing, the Columbia emails likely came from a warrant served on the university in October 2019, whereas the texts should have only been available via the fourth warrant on Richman’s phone, but as I’ll show, may have instead come from unlawful searches from the hard drive seized with the first warrant in August 2019.

August 29, 2019: FBI seizes Richman’s hard drive. The government does a privilege review of that, not Richman.
October 2019: FBI obtains emails from Columbia. Richman withheld privileged or sensitive (from students), but conducted no responsiveness review.
January 2020: FBI obtains Richman’s iCloud. His attorney did a privilege review. The warrant specifically said it could not seize privileged material.
June 4, 2020: FBI gets warrants to access iPhone and iCloud back-ups on the original hard drive.

The arguably legal emails don’t prove DOJ’s case

Aside from the fact that the FBI accessed them without a warrant tailored to the current investigation, the two bolded emails were clearly responsive to the investigation into whether Richman leaked the SVR materials in advance of the April 22, 2017 story about them. But as I noted here, they don’t help the government prove that Comey lied to Ted Cruz about authorizing Richman, while he was at FBI, to be an anonymous source for a story about the Hillary investigation because:

There’s no evidence of Comey’s involvement in the story in advance
The emails unquestionably post-date Richman’s departure from FBI (Anna Bower expanded on the work I did to show that Richman was arguably never formally “at FBI” in this period)
Richman was a named source in the story

The January 2, 2015 email might be legal, but who cares? It doesn’t help the government’s case at all (and most likely was used to mislead grand jurors about the time frame of Richman’s relationship with the FBI).

The emails that come closest to proving the government’s case may be out of scope

It’s less clear whether the emails from fall 2016 — the ones that best match the theory of the case — should have been accessible to investigators for the investigation into whether Comey lied to Ted Cruz. That’s because — at least per a November 22, 2019 interview — Richman didn’t learn about the SVR emails until January 2017.

According to Richman, he and Comey had a private conversation in Comey’s office in January 2017. The conversation pertained to Comey’s decision to make a public statement on the Midyear Exam investigation. Comey told Richman the tarmac meeting between Lynch and Clinton was not the only reason which played into Comey’s statement on the Midyear Exam investigation. According to Richman, Comey told Richman of Lynch’s characterization of the investigation as a “matter” and not that of an investigation. Richman recalled Comey told him there was some weird classified material related to Lynch which came to the FBI’s attention. Comey did not fully explain the details of the information. Comey told Richman about the Classified Information, including the source of the information. Richman understood the information could be used to suggest Lynch might not be impartial with regards of the conclusion of the Midyear Exam investigation. Richman understood the information about Lynch was highly classified and it should be protected. Richman was an SGE at the time of the meeting.

Nothing in the hearing on Wednesday describes the date scope of the warrants. But immediately after she described this warrant, Doneleski raised doubts about whether the Columbia emails had been reviewed for responsiveness, with non-responsive emails sealed.

As Your Honor is aware, each of these warrants require the government to conduct a responsiveness review and then seal and not review the nonresponsive set. I don’t know if that happened here, and Mr. Lemons didn’t describe whether the government created a responsive set.

[snip]

MS. DONALESKI: Judge, the government provided us with affidavits describing what happened; and from the affidavits, it sounds like the agents accessed the filtered returns, meaning both the nonresponsive and responsive set, because Mr. Richman’s counsel and Columbia did not conduct a responsiveness review. If that is indeed what they accessed, for the reasons we set forward in our papers, that clearly violates the Fourth Amendment because the government cannot then go back into a nonresponsive set that has not been identified responsive and continue searching pursuant to stale warrants for separate offenses.

If these emails were out of scope according to the 2019 warrants, then they should be sealed, inaccessible to anyone.

The privileged material was prohibited under the previous warrants

Tyler Lemons tried to excuse an agent for having read privileged communications by explaining that in those communications, Dan Richman used the name Michael Garcia.

MR. LEMONS: I don’t know the status — I don’t know if the team knew the status of their relationship. The other complicating factor, Your Honor — and we have two affidavits here that we’ve provided to the defense, and we have copies for the Court as well if you’d like to review it — one of the issues was the conversation that was being reviewed, the telephone name associated with one of the participants was Michael Garcia. And so it wasn’t as if the agent went in reviewing a conversation between James — the defendant and Daniel Richman; it was a conversation between the defendant and Michael Garcia. And so at a certain point, the agent began to understand the topics and the kind of factual — the history of the case; came to the conclusion that Michael Garcia looks like it’s actually Daniel Richman under a pseudonym or whatever it is. And at that point, it kind of brought into focus what, potentially, the conversations that the agent was looking at could be pertaining to.

That’s the name Richman used in texts exchanged with Mike Schmidt about the memo Comey had documenting Trump asking to let the Mike Flynn case go and because of timing — Richman only formally represented Comey after he was fired on May 9 — it’s likely the privileged stuff is the counterpart to this discussion.

It’s unclear whether these texts would have been in scope for the Arctic Haze investigation. In addition to the leak crime, 18 USC 793, the government also investigated using government materials, 18 USC 641, converting government records for personal use. In an interrupted comment, Lemons claimed it was responsive, which it might have been to that second crime. Donaleski wondered how the government filed them if they paused all review.

The government filed, on Monday, text message chats that came from the Arctic Haze warrants.

The question is how privileged texts between Richman and Comey were available in the first place. Lemons blamed the review Richman did.

MR. LEMONS: It would appear that he was — I don’t know for sure, Your Honor, but my assumption and based on him raising his hand on this, is that he was reviewing material that had not been filtered by Daniel Richman or his attorneys.

But given Donaleski’s mention of that original warrant, the one for which Richman did not do a filter, I wonder if DOJ got unfiltered content by accessing the unfiltered backup (which is effectively how prosecutors got the most damning texts used against Hunter Biden at his trial).

However investigators got to the privileged texts, it doesn’t fix the problem because they still accessed stuff from Comey before he had had an ability to make privilege determinations. And Donaleski argued anything privilege was not permitted to be seized, so anything reviewed now would be unlawful.

the warrants themselves specify that the government could only seize non-privileged materials

[snip]

MS. DONALESKI: And so to the extent the government now wants to look at materials that Mr. Richman’s counsel identified as privileged, those were never within the scope of the warrants, so they were never properly seized by the government, so no one can look at those materials. They weren’t seized five years ago. The government’s filter team didn’t challenge those designations, so no one can look at them. There’s no case law that says the government can go back five years later under stale warrants for separate offenses to look at things that were not seized five years ago.

Here’s where things get interesting, though.

The Comey memos are unresponsive to this investigation

Comey’s team has until the 19th to submit a Fourth Amendment challenge to this material. I imagine their argument may include the privilege problem and the responsiveness problem.

But then there’s the issue of proving that these texts are relevant to this investigation.

The Comey memos are undoubtedly responsive to the conspiracy conspiracy Trump is attempting to put together in Florida. This entire privilege effort seems to be an effort to clean up the material for the other investigation, not this one (which may be why James Hayes is on all the most important filings in this fight). The Florida case seems focused on claiming that by releasing the memo with the intent of precipitating a Special Counsel investigation, Comey unfairly harmed Trump.

But to argue these texts are responsive to this investigation, prosecutors would have to claim that they’re still relevant even after Comey admitted he had shared the memo via Richman, way back in 2017. Republicans have known that detail for years. His public admission of that fact is central to their claim that Trump had legitimate cause to worry about Comey leaking.

But to make that claim, they have to rely on the same false claim prosecutors (one of the filings that metadata attributes to James Hayes) made last month: that the act of sharing a memo that Comey understood to be unclassified was a criminal leak. (Starting in 2020, the government began to have problems charging 18 USC 641 in this context and precedent may rule it out any longer.)

That is, if prosecutors have to get a warrant for this material, it’s not clear they could get one for the EDVA case. If they tried for the Florida case, it could well blow up that case.

This whole effort started when, in the wake of the taint, prosecutors decided to use this case to quickly force though access to the privileged texts they saw. But thus far, the effort may make it harder to access material for both this case and that one.

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As Spacemen Stalk Jim Comey, Loaner AUSA Tyler Lemons Doxed Him

November 8, 2025/14 Comments/in Weaponized DOJ /by emptywheel

On October 20, in response to a Gateway Pundit article reporting on Judge Michael Nachmanoff’s decision not to accelerate the government’s bid for a privilege review, a guy writing under the moniker Spaceman Chuck claimed “we already have a team on” making sure that Comey “go[es] down” if he is not convicted.

A month earlier, in response to John Brennan’s criticism of the Comey indictment, Spaceman Chuck commented that their safety is not guaranteed.

As CourtWatch reported, Spaceman Chuck, AKA Greg Formicone, was arrested Wednesday for these threats, as well as others targeting Letitia James (also in response to a Judge’s decision) and Hunter Biden.

That very same day, in a hearing regarding the very same topic as that Gateway Pundit article — that is, the government’s bid to breach Jim Comey’s privileged communications — there was an exchange that hinted at how Loaner AUSA Tyler Lemons had made it easier for nutjobs like Spaceman Chuck.

Magistrate Judge William Fitzpatrick started the hearing by discussing warrants used to seize material from Dan Richman over five years ago. He asked whether the original warrants could be unsealed.

Rebekah Donaleski, representing Comey, asked to be able to propose redactions before the warrants are unsealed. She explained they were primarily hoping to seal things like email addresses.

THE COURT: Are your redactions simply limited to PII information or are they substantive in nature?

MS. DONALESKI: We expect that it will be primarily PII information or things of that nature, so email addresses, ID numbers, things —

But those kinds of things, Fitzpatrick noted, are already required to be sealed under court rules.

THE COURT: Anything like that, under court rules, are already going to be sealed. So anything having to do with emails, phone numbers, anything like that is never going to be unsealed with respect to this. But with respect to any of the substantive information, the more factual information, do you still want a chance to review that?

In a follow-up, Donaleski suggested that “the government has a different position” on whether those things are PII.

MS. DONALESKI: We would appreciate that. And, Your Honor, with respect to the PII, I understand the government has a different position on what is PII, so I appreciate Your Honor’s view that email addresses and phone numbers should be redacted as PII.

Lemons responded by suggesting that phone numbers and email addresses are not PII under Local Rules (which will surely go over well with Fitzpatrick).

There was basically a discussion between Defense and the government as exactly what is required to be redact — what is considered PII under Local Rule 47 and then the Federal Rule of Criminal Procedure 49, and telephone numbers and email addresses are not considered that, but per the Defense’s request, when they requested us to redact that information, we did make that redaction, and we think that is the appropriate way to proceed going forward to make sure both parties are having a collegial conversation and redacting what needs to be redacted; and if there are any lingering issues that remain after that, it’s something appropriately brought to the Court prior to anything being filed on the docket.

Neither Donaleski nor Lemons mentioned what this discussion about PII referenced. But it is undoubtedly a reference to the way Lemons released exhibits in support of a filing earlier that week, leaving email addresses and phone numbers unredacted. Even after the first round of redactions, a phone number for Comey remained unredacted (it has since been redacted), though well before Comey and Richman’s PII was redacted, prosecutors had redacted an FBI email.

I’m fairly certain the threats from Forticone were nowhere near the first credible threats targeting Comey. Yet instead of minimizing such a threat, Lemons fueled it.

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Fridays with Nicole Sandler

November 7, 2025/10 Comments/in Weaponized DOJ /by emptywheel

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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Tyler Lemons Caught Jack Eckenrode Committing a Capstone Crime

November 7, 2025/15 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Back in July, in the wake of Trump’s struggles to distract from his own Epstein cover-up and as if in response to Tulsi Gabbard’s wild rants about the Intelligence Community Assessment, the FBI Director posted this tweet, RTing an inflammatory tweet from a propagandist who has been central to Kash’s disinformation about the Russian investigation.

Buried in a back room at the FBI, Kash claimed, was what John Solomon called “the smoking gun evidence … [i]f it is authenticated.”

Days later, Kash referenced these files again, explicitly tying his campaign to supplant the Steele dossier for the actual Russian investigation with his role, as FBI Director, now focusing on “uncovered burn bags/room filled with hidden Russia Gate files, including the Durham annex.”

It took just a matter of days for me and Charlie Savage to figure out that four years earlier, John Durham had not just not authenticated John Solomon’s “smoking gun,” but he had in fact concluded that the very email Solomon called a smoking gun was instead, “a composite of several emails.”

That is — a fabrication.

After the release of the Durham annex revealed that Kash — and John Durham and John Durham’s lead investigator Jack Eckenrode, along with John Ratcliffe — had been chasing Russian disinformation, Kash got even more desperate, clinging to Sean Davis propaganda in an attempt to rebut a plain reading of the Durham annex.

The FBI Director just endorsed the ignorant ravings of a long-discredited propagandist, Sean Davis, attempting to debunk the NYT’s factual reporting that the letters on which the entire conspiracy the frothy right has been chasing for years “were probably manufactured.”

Kash needs Davis to be right, because if he’s not, it exposes Kash as someone too stupid to understand he has been chasing Russian disinformation for years. Kash needs Davis to be right, because Kash just declassified this annex thinking it would help his boss distract from the Epstein scandal that him himself stoked, when in fact it shows that Russian spies have been laughing their ass off at everyone involved for nine years (which I’ll come back to).

The truth is, Kash has been chasing documents as self-evidently problematic as the Steele dossier all that time.

He has proven an easy mark.

That’s what we saw in real time. We also saw in the classified annex both that Durham, along with his chief investigator, Jack Eckenrode, tried to hide the evidence that they had been chasing Russian disinformation for years — indeed, continued to chase Russian disinformation for two years after obtaining confirmation they were doing that. Then Tulsi Gabbard and Chuck Grassley tried to hide that Durham had tried to hide that.

It became clear that John Durham and his lead investigator Jack Eckenrode had committed the very crime that Durham claimed he was investigating when he chased Russian disinformation for four years, which he described this way:

(i) knew the Clinton campaign intended to falsely accuse its opponent with specific information or allegations, (ii) intentionally disregarded a particular civil right of a particular person (such as the right to be free of unreasonable searches or seizures), and (iii) then intentionally aided that effort by taking investigative steps based on those allegations while knowing that they were false.

From the moment John Durham and his lead investigator Jack Eckenrode persisted in falsely accusing Hillary of framing Donald Trump and used that false accusation to take investigative steps like obtaining warrants, they were (in their model) conspiring against rights under 18 USC 241.

18 USC 241 happens to be the crime that the frothers claim they are pursuing against Comey and everyone else right now.

About a month after Kash first rejoiced about the opportunity to commit the crime Durham had chased, we learned that Jack Eckenrode — shockingly!! — had been invited back to commit the same crime some more. NYT since updated on how, little more than a month after Todd Gilbert was confirmed as US Attorney in WDVA and asked to oversee this investigation, he left under pressure.

That’s background to these two exhibits that prosecutors included in the government’s response to Comey’s vindictive prosecution motion.

Start with the opening memo for an investigation into whether someone deliberately put a bunch of documents in burn bags but … didn’t burn them, the precipitating event that Kash boasted about on July 31. In fact, those burn bags were discovered in April, and they were discovered in FBI Headquarters, not WDVA, where Kash and Bondi stashed the investigation. And the likely explanation for the documents is that senior FBI people were clearing out their offices to make way for … Kash Patel.

On or about April 15, 2025, the Director’s Advisory Team was informed of the unusual discovery of highly classified and sensitive documents found inside five “burn bags” located in Room 9582, a certified Sensitive Compartmented Information Facility (SCIF) at the FBI Headquarters building in Washington, DC.

A cursory inventory of the 9582 SCIF revealed the existence of classified documents, including documents believed to be official records, inside “burn bags” which appeared to have been placed in the SCIF around the timeframe of the 2025 presidential inauguration – Friday, January 17, 2025 through Wednesday, January 22, 2025. A brief review of the contents of the “burn bags” revealed that some of the documents left behind may have come from a collection of records held by certain unidentified senior government officials at FBI Headquarters.

What really set Kash off, it seems clear, is that — seemingly amid a bunch of files relating to the Special Counsel investigations that happened during the Biden Administration — was the document at the heart of Durham’s criminal investigation building on Russian disinformation, a document potentially referring to the fabrications Russian spies made.

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. [my emphasis]

Now, there are already several flashing lights here. 🚨🚨🚨 [Sorry Rayne!]

You cannot have Jack Eckenrode anywhere near the criminal investigation into a document he chased for years. He has more incentive to hide the Durham annex showing that he committed the very crime he was investigating than Comey (or anyone close to him) has to hide the CIOL. In any case, this still seems to fall well short of proof that the FBI actually received it. This opening memo describes that the people who are supposed to catalog such things did not, and if they found it after the fact, it would raise real questions if Eckenrode planted it.

Worse still, the opening memo for this investigation misrepresents Comey’s testimony from the hearing.

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.

[snip]

Senator Graham: Did you have a duty to look at any allegations regarding Clinton in Russia?

Mr. Comey: I don’t know what you mean. Senator Graham: Well, you say you had a duty to look at allegations about the Trump campaign being involved with the Russians. You’ve got a letter now from Radcliffe saying that there was a, they intercepted information about an effort in July where Hillary Clinton approved an effort to link Trump to Russia or the mob. Did you have an investigation look and see if whether that was true?

Mr. Comey: I can’t answer that. I’ve read Mr. Radcliffe’s letter, which frankly I have trouble understanding.

That’s true, in part, because Graham misrepresented what the CIOL was. As it explains, the memo only served to provide the kinds of information that the CIA was finding in SVR documents obtained from the Dutch. It was not a request for the FBI to conduct an invsetigation, but right wingers have treated it as such for years.

The redaction in the pertinent paragraph, which seems to be a reference to Guccifer 2.0, likely obscures the entire meaning of the paragraph, to say nothing of the redaction of the other paragraphs. More importantly, there was no discussion at the hearing of what Comey would have understood this to belong to: the larger set of SVR documents that the FBI had deemed objectively false much earlier in the year.

In other words, that reference in the opening document shows that this entire investigation was predicated on a false claim about Comey — it represents Eckenrode’s false belief about Comey, not the actual transcript (remember, Loaner AUSA Tyler Lemons hid this transcript as an exhibit in his response to Comey’s selective prosecution bid).

And the Jim Comey notes that Lemons insinuates undercut Comey’s claims about receiving the CIOL on September 7, 2016 only serve to underscore this point.

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).

These notes are more consistent with the SVR files being disinformation, rather than the truth right wingers have adopted it as.

More importantly, there’s no reason for Comey to be briefed (possibly by John Brennan) on a topic on September 26 if he received information about it 19 days earlier.

That is, these notes appear to be Comey writing down the reference, understanding it to be part of an attack on Hillary, weeks after Republicans want to catch him receiving a memo.

The part about prosecutors and FBI agents reading these notes in the least sensical way possible is not a crime.

What is a crime, though, is using Russian disinformation you know to be Russian disinformation (and Comey appears to have believed was disinformation) to obtain a criminal indictment.

And it appears that Lindsey Halligan tried to do that — but got no-billed.

Further, according to the transcript from the hearing on Wednesday, Comey’s team read Tyler Lemons’ response to Comey’s vindictive prosecution claim the same way I did:

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).

On Wednesday, Pat Fitzgerald expressed serious concern that “the government is expanding its case, we believe, to include the conduct that was no true billed in Count One as part of its proof of Count Two.”

And on top of that, Your Honor, I think there’s another motion coming from us, in light of some disclosures that were made Monday, where we think that the government is expanding its case, we believe, to include the conduct that was no true billed in Count One as part of its proof of Count Two, which raises serious issues for us. So we’ll do everything we can, but to do all that while getting Mr. Comey access to materials…

As I’ve said, this is the founding document of their conspiracy theories.

On Wednesday, Lemons didn’t raise an objection when Magistrate Judge William Fitzpatrick first said he was going to order DOJ to turn over grand jury transcripts, suggesting Lemons may have no fear Miles Starr presented privileged information to the jury.

By the end of day yesterday, he did have an objection. Michael Nachmanoff has bumped the whole grand jury question back to Fitzpatrick, so I expect Patrick Fitz (sorry, bad joke!) will get to test this theory shortly.

But that — relying on a no-billed charge for the obstruction charge — is not the only problem with chasing the Clinton Plan disinformation that John Durham debunked.

The far graver problem is it means Miles Starr is a witness to, if not a co-conspirator to, Jack Eckenrode (and FBI Director Kash Patel) committing a crime, precisely the crime they’re chasing.

Four years ago, Jack Eckenrode concluded this stuff was a Russian fabrication, the very thing they claim about the Steele dossier.

And then, Jack Eckenrode got an indictment for it anyway.

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May This Week Be a Pivot

November 7, 2025/62 Comments/in Unitary Executive, Weaponized DOJ /by emptywheel

I just wanted to share three lists I’ve made about this week so far.

Wednesday’s hearings

The first was about the range and magnitude of hearings on Wednesday.

4 court hearings today:

1) Review of Trump’s tariffs in SCOTUS

2) Hearing on FBI’s review of Jim Comey material w/o new warrant

3) Closing arguments and deliberation for sandwich guy in DC

4) Preliminary injunction hearing for CBP/ICE invasion of Chicago, featuring Greg Bovino vids

As I noted here, not only did it sound like there are at least five votes to throw out Trump’s tariffs, Neil Gorsuch also said some important things about whether Congress can abdicate its power to declare war.

The Comey hearing did not go well for the government. Magistrate Judge William Fitzpatrick ordered the government to hand over everything by end of day yesterday, to load up the grand jury transcripts to the docket, and to answer a bunch of questions.

ORDERED that, by 5:00 p.m. on November 6, 2025, the Government shall produce to Defendant, in writing, the following information:

Confirmation of whether the Government has divided the materials searched pursuant to the four 2019 and 2020 warrants at issue into materials that are responsive and non-responsive to those warrants, and, if so, a detailed explanation of the methodology used to make that determination;

A detailed explanation of whether, and for what period of time, the Government has preserved any materials identified as non-responsive to the four search warrants;

A description identifying which materials have been identified as responsive, if any; and

A description identifying which materials have previously been designated as privileged; and it is further

Fitzpatrick also forbade the government — which should apply both to this investigative team and the one trying to do the conspiracy against rights case in Florida — from searching the materials.

The government filed a notice of compliance, noting Fitzpatrick’s written order was filed just after noon, confirming it had handed him the materials, but not confirming that they had explained the scope and filter questions.

1 The Order at D.E. 161 was received via CM/ECF at 12:13 p.m. on November 6, 2025.

But after that, they filed an appeal of Fitzpatrick’s order to load the grand jury transcript that claimed Fitzpatrick had not filed a written order they noted in their earlier docketed filing.

1 A written order pursuant to the Magistrate Judge’s oral order at the November 5 hearing has not been entered on the docket.

They didn’t say whether they had answered Fitzpatrick’s questions (which, in any case, don’t reveal whether the investigative team had access). Fitzpatrick could simply file a response saying that Comey has an indvidualized need to figure out if Miles Starr relied on privileged information to get the indictment before he moves to suppress these warrants; in any case, stay tuned.

As you’ve no doubt heard, sandwich guy Sean Dunn was acquitted. Kudos to Sabrina Shroff, who is one of the most ferocious defense attorneys in the country.

In Chicago, Judge Sara Ellis enjoined CBP and ICE from continuing to abuse the First and Fourth Amendments of people in the city. Here’s Chicago Sun Times’ report on the hearing.

After Wednesday, we got two horrible decisions — one at SCOTUS, one in the Sixth Circuit — for trans people. All was not good. But there was important movement in some places.

Will Millennials finally lead us beyond the War on Terror?

The second list marked four things that suggest we could move out of the world Dick Cheney significantly created.

Monday: Dick Cheney kicks it
Tuesday: 34-yo Muslim becomes mayor of NYC
Wednesday: Gorsuch raises grave concerns abt Congress abdicating the power to declare war
Thursday: Pelosi announces retirement

Even assuming SCOTUS will throw out Trump’s tariffs, I’m sure we’ll be disappointed by whatever opinion they release doing so. Nevertheless I have hopes that this kind of language from Gorsuch makes it into that opinion.

JUSTICE GORSUCH: — we shouldn’t be concerned with — I want you to explain to me how you draw the line, because you say we shouldn’t be concerned because this is foreign affairs, the President has inherent authority, and so delegation off the books more or less.

GENERAL SAUER: Or at least —

JUSTICE GORSUCH: And if that’s true, what would — what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war to the President?

[snip]

JUSTICE GORSUCH: Can you give me a reason to accept it, though? That’s what I’m struggling and waiting for. What’s the reason to accept the notion that Congress can hand off the power to declare war to the President?

GENERAL SAUER: Well, we don’t contend that. Again, that would be —

JUSTICE GORSUCH: Well, you do. You say it’s unreviewable, that there’s no manageable standard, nothing to be done. And now you’re — I think you — tell me if I’m wrong. You’ve backed off that position

How to pay for free buses

Finally, there’s this observation.

Wednesday: The incoming Mayor of NYC names Lina Khan a key advisor

Thursday: Corrupt shareholders of Tesla create the Trillion dollar Keta-Man

When Jerry Nadler announced his retirement, Lina Khan was one of the first people mentioned as a worthy replacement. She almost immediately said she was not interested.

I’m wondering if she was already thinking about what more she can accomplish as an advisor to Mamdani.

This sure feels like a week that — if we survive long enough to look back at it — was a pivotal one.

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Tyler Lemons Narcs out Pam Bondi: She Couldn’t Have Ratified Lindsey Halligan’s Actions

November 5, 2025/27 Comments/in Weaponized DOJ /by emptywheel

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.

Update: An interesting wrinkle. Normally it’d take a long time to drag someone in the AG’s vicinity to answer for these irregularities. But not so here. Henry Charles Whitaker has filed notices of appearances in both the Comey and James cases in advance of next week’s hearing on these challenges. He’s the former FL Solicitor General, now serving as Bondi’s Counselor. That may backfire.

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Pam Bondi’s DOJ Gets Admonished a Second Time for Indict[ing] First, Investigat[ing] Second

November 5, 2025/5 Comments/in Weaponized DOJ /by emptywheel

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.

Update: The timeline on this gets more damning.

September 22: Lindsey Halligan appointed.

Days before Comey’s indictment: Investigators review the materials anew.

September 25: Miles Starr presents to the grand jury and then files notice of exposure to Attorney-Client material.

October 7: Lemons files notice of appearance, but refuses to tell Comey who the people referred to in indictment are.

October 10: Lemons starts pressuring Comey to access privileged material.

October 13: Lemons files for access to privileged material.

October 15: Lemons finally tells Comey who the people in the indictment are.

October 19: In bid to accelerate access to privileged material, Lemons accuses Patrick Fitzgerald of being part of classified leak — a slanderous attempt to criminalize sharing details of Trump’s misconduct.

November 3: Lemons files response relying on discovery Comey hasn’t yet received.

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Cat Got the Indictment Singer’s [sic] Tongue?

November 4, 2025/29 Comments/in Weaponized DOJ /by emptywheel

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.

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Tyler Lemons’ Vindictive and Selective Bill of Particulars

November 4, 2025/4 Comments/in emptywheel /by emptywheel

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.

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The Halloween Special Attorney’s Loaner AUSAs’ Loaner AUSA Forgot to Describe Jim Comey’s Imaginary Crime

November 3, 2025/19 Comments/in emptywheel /by emptywheel

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.

Posts

Spill! The EDVA Case against Jim Comey Could Well Harm the Even More Corrupt SDFL Case

The arguably legal emails don’t prove DOJ’s case

The emails that come closest to proving the government’s case may be out of scope

The privileged material was prohibited under the previous warrants

The Comey memos are unresponsive to this investigation

As Spacemen Stalk Jim Comey, Loaner AUSA Tyler Lemons Doxed Him

Fridays with Nicole Sandler

Tyler Lemons Caught Jack Eckenrode Committing a Capstone Crime

May This Week Be a Pivot

Wednesday’s hearings

Will Millennials finally lead us beyond the War on Terror?

How to pay for free buses

Tyler Lemons Narcs out Pam Bondi: She Couldn’t Have Ratified Lindsey Halligan’s Actions

Pam Bondi’s DOJ Gets Admonished a Second Time for Indict[ing] First, Investigat[ing] Second

Cat Got the Indictment Singer’s [sic] Tongue?

Tyler Lemons’ Vindictive and Selective Bill of Particulars

Lemons establishes the need to include transcripts omitted from the indictment

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

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

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

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

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

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

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

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

None of these stories match the elements of the offense

The Halloween Special Attorney’s Loaner AUSAs’ Loaner AUSA Forgot to Describe Jim Comey’s Imaginary Crime

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Interesting links

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