A federal judge blasted Justice Department prosecutors on Wednesday several times for what he described as an “indict first, investigate later” attitude in the criminal case against former FBI Director James Comey.
Magistrate Judge William Fitzpatrick voiced his concerns at a hearing in U.S. District Court in Alexandria about how prosecutors from the Eastern District of Virginia were handling evidence against Comey, who was indicted in September on one count of making a false statement and one count of obstructing a congressional proceeding stemming from his testimony on Sept. 30, 2020, during a Senate Judiciary Committee hearing.
Comey, who was indicted after President Donald Trump urged Attorney General Pam Bondi in a social media post to charge Comey and other longtime enemies, has pleaded not guilty.
Ahead of a trial scheduled for Jan. 5, his attorneys have argued that the case should be dismissed on the basis that it is a vindictive prosecution brought at the behest of Trump. They are also challenging interim U.S. Attorney for the Eastern District of Virginia Lindsey Halligan’s appointment as U.S. attorney, calling it “unlawful.”
On Wednesday, Fitzpatrick expressed particular concern about information that was obtained through search warrants from a previous FBI investigation. He appeared frustrated and said this was not a “traditional case” and that “the procedural posture of this case is highly unusual.”
Fitzpatrick chastised prosecutors, saying, the “indict first investigate later” strategy they employed “creates procedural challenges.”
The hearing lasted just under an hour.
Fitzpatrick ordered prosecutors to produce, by the end of the day on Thursday, all grand jury transcripts and materials from the current prosecution as well as evidence that FBI agents seized during a prior leak investigation in 2019 and 2020.
Comey’s attorneys said they are at a disadvantage because they have not received access to the information that was collected back then as part of an investigation into FBI media leaks known as "Arctic Haze."
Four search warrants targeted Daniel Richman, a Columbia University law professor who was an “FBI special government employee” and a close friend and onetime attorney for Comey. He has been revealed to be “person 3” in the Comey indictment.
The indictment alleges that Comey told Richman to leak information to reporters and therefore he lied to the Senate Judiciary Committee when he denied having authorized any media leaks.
But Comey’s lawyers say he was not referring to Richman at the time, and that he thought he was responding to a question about former FBI Deputy Director Andrew McCabe.
Comey’s lawyers told the judge they had not been able to review the materials and data seized from Richman’s electronic devices, so they don’t know if any of it contained privileged information from back in 2019 and 2020, when Richman served as Comey’s personal attorney.
“We’re going to fix that, and we’re going to fix that today,” Fitzpatrick said, questioning whether privileged information had been used to secure the indictment against Comey as well as in subsequent court filings.
Nathaniel Lemons, an assistant U.S. attorney brought in from North Carolina to prosecute the case against Comey, said investigators reviewing the old search warrant materials stopped the process after finding information that might fall under attorney-client privilege with Richman.
Lemons said the information seized from the old search warrants has been “isolated on a desk in FBI headquarters.”
Fitzpatrick said he was admittedly putting an “unfair burden” on the defense because they will not have much time to review the discovery materials once handed over by the prosecution, due to the fast track that the case is on.
“The defense is gravely concerned with the government’s conduct,” said Rebekah Donaleski, one of Comey’s attorneys.
Another stumbling block for Comey’s team: Defense attorney Patrick Fitzgerald said he has not been able to review classified information in the case because of a delay in getting a security clearance.
Comey attended the hearing but did not speak, and sat at the defense table with his attorneys: Fitzgerald — a former U.S. Attorney for the Northern District of Illinois — and Donaleski — a former Assistant U.S. Attorney for the Southern District of New York — who did the bulk of the talking for the defense.
Comey’s wife and his son-in-law, former assistant U.S. Attorney for the Eastern District of Virginia Troy Edwards, Jr., who resigned from the U.S. Attorney’s office after Comey’s indictment, sat in the courtroom's first row.
At the prosecution table sat Halligan, who presented the case by herself to the grand jury.
Halligan, a former White House aide and former Trump attorney, was named interim U.S. attorney despite her lack of prosecutorial experience after the previous U.S. Attorney, Erik Siebert, resigned under pressure to indict Comey and New York Attorney General Letitia James.
Halligan also indicted James, a frequent Trump target, who secured a nearly $500 million judgment against him and his companies before he was elected to a second term last year. A New York appeals court later tossed out the civil fraud penalty. James also has pleaded not guilty to charges she similarly describes as political retribution.
