Washington — A federal magistrate judge on Monday ordered federal prosecutors to turn over all grand jury material to former FBI Director James Comey’s defense team, harshly criticizing the Justice Department for a “disturbing pattern of profound investigative missteps” in its handling of the case against the ex-FBI chief.
U.S. Magistrate Judge William Fitzpatrick allowed Comey’s legal team to get access to all grand jury materials, including transcripts and evidence presented to the grand jury that indicted Comey on two charges relating to past testimony to Congress. Fitzpatrick also ordered the Justice Department to turn over the complete audio recordings of the proceedings to Comey’s legal team.
Comey has pleaded not guilty to both counts, which stem from alleged misstatements he made to the Senate Judiciary Committee during a September 2020 hearing. The former FBI director was indicted just days before the statute of limitations on those offenses ran out.
The judge recognized the magnitude of his decision to allow Comey’s lawyers access to the grand jury material, which is typically kept secret, writing in a scathing 24-page decision that he is granting an “extraordinary remedy” to fully protect Comey’s legal rights. Fitzpatrick said such a step is warranted because of “the prospect that government misconduct may have tainted the grand jury proceedings.”
“The Court recognizes that the relief sought by the defense is rarely granted,” he wrote. “However, the record points to a disturbing pattern of profound investigative missteps, missteps that led an FBI agent and a prosecutor to potentially undermine the integrity of the grand jury proceeding.
Fitzpatrick wrote that “procedural and substantive irregularities that occurred before the grand jury, and the manner in which evidence presented to the grand jury was collected and used, may rise to the level of government misconduct resulting in prejudice to Mr. Comey.”
The U.S. Attorney’s Office for the Eastern District of Virginia, which is prosecuting Comey, did not immediately return a request for comment. The Justice Department had no comment.
Fitzpatrick’s role in the case stems from the government’s request to implement a filter protocol to govern its handling and the disclosure of potentially privileged material that was seized in 2019 and 2020 as part of a separate investigation and was never returned. Comey’s team opposed the move and argued that the information the government wanted to review was improperly retained after the end of that earlier investigation and improperly used in the probe involving Comey.
The ex-FBI director is seeking access to the grand-jury material as part of a bid to have the indictment dismissed because of alleged irregularities in those proceedings.
At a hearing earlier this month, Fitzpatrick admonished the Justice Department for what he said is its posture to “indict first, investigate second.”
Fitzpatrick himself reviewed the grand jury materials and wrote in his decision that he identified two statements Lindsey Halligan, the interim U.S. attorney in the Eastern District of Virginia, made to the grand jurors that “on their face appear to be fundamental misstatements of the law that could compromise the integrity of the grand jury process.”
Portions of the decision — including Halligan’s comments — are redacted, but Fitzpatrick said both were made in response to questions from grand jurors and are “directly related to communications involving Comey.”
Fitzpatrick said one statement Halligan made to the grand jury “suggests” that Comey does not have a constitutional right to not testify at trial. The second remark from Halligan suggested that the grand jury “did not have to rely on only the record before them” and that there was “more evidence — perhaps better evidence” that the Justice Department had that would be used at trial, the judge said.
The material at issue was seized by the FBI in 2019 and 2020 in response to court-authorized search warrants for accounts and devices belonging to Daniel Richman, a law professor at Columbia University who is a friend of Comey. Richman worked as a special government employee at the FBI during Comey’s tenure as director, and was his private attorney as of May 2017, when Mr. Trump fired Comey during his first term.
Fitzpatrick said the materials seized from Richman were the “cornerstone” of Halligan’s presentation to the grand jury that voted to indict Comey, even though they had been retrieved five years earlier as part of the separate investigation that has since been closed.
The government also appears to have access to information it seized from Richman that was outside the scope of the search warrants, the judge said, even though agents had been instructed to seal any information that did not fall within the contours of the warrants.
“The government appears to have conflated its obligation to protect privileged information – an obligation it approached casually at best in this case – with its duty to seize only those materials authorized by the Court,” he wrote. “This cavalier attitude towards a basic tenet of the Fourth Amendment and multiple court orders left the government unchecked to rummage through all of the information seized from Mr. Richman, and apparently, in the government’s eyes, to do so again anytime they chose.”
While the investigation involving Richman was closed in September 2021 and no charges were filed, the bureau “chose to rummage through” the seized material again this summer, when the FBI and U.S. Attorney’s Office for the Eastern District of Virginia began a criminal investigation into Comey, the judge said.
Fitzpatrick wrote that despite the investigation into Comey starting this year, “inexplicably, the government elected not to seek a new warrant for the 2025 search,” of Richman’s devices, “even though the 2025 investigation was focused on a different person, was exploring a fundamentally different legal theory, and was predicated on an entirely different set of criminal offenses.”
If the Justice Department had sought new warrants, Fitzpatrick wrote it likely would have resulted in “a delay the investigative team could not afford given that the statute of limitations would expire in a mere 18 days.” Additionally, the judge said the parameters of a 2025 search would likely have been narrower in scope than the original warrants authorized for Richman’s devices and accounts.
The rush to prosecute Comey over his testimony in the face of the statute of limitations running out also resulted in the appointment of one of Mr. Trump’s former aides and personal attorneys, Halligan, to lead the federal prosecutor’s office in the Eastern District of Virginia. Both Comey and New York Attorney General Letitia James, who was also indicted under Halligan’s supervision, are challenging her appointment as unconstitutional.
James was indicted on charges of bank fraud last month and pleaded not guilty.
Halligan appeared before the grand jury on Sept. 25, but Fitzpatrick said that same day, before her presentation, an unidentified FBI agent alerted the lead case agent and a lawyer with the FBI’s Office of General Counsel that evidence obtained during the investigation into Comey may have been subject to attorney-client privilege or constitute attorney-client confidential information.
But instead of removing himself from the investigative team until any potential issues were resolved, the judge said the lead case agent appeared before the grand jury “undeterred” and testified in support of bringing charges against Comey.
“The government’s decision to allow an agent who was exposed to potentially privileged information to testify before a grand jury is highly irregular and a radical departure from past DOJ practice,” Fitzpatrick wrote.
Fitzpatrick’s findings Monday are among numerous legal threads that have imperiled the Comey prosecution.
Last week, a South Carolina federal judge heard arguments from both Comey’s and James’ legal teams on the legality of Halligan’s appointment to lead the Eastern District of Virginia, with both requesting the judge dismiss the indictments against them because Halligan’s appointment was unlawful. The judge overseeing that argument said she will have a ruling by next week.
Meanwhile, Comey’s attorneys will be back in court Wednesday, where they will argue that the indictment against Comey was “vindictive and selective” and should separately be dismissed on those grounds.
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