A federal judge in Virginia on Monday warned prosecutors that their case against former FBI Director James Comey could be in jeopardy after he found the government's handling of the case raises "genuine issues of misconduct" that could result in dismissal of the charges.
In his ruling, Magistrate Judge William Fitzpatrick granted a request from Comey's lawyers, who had asked prosecutors to turn over grand jury materials from Comey's indictment. He acknowledged that his order was an unusual step, but that "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."
Among the missteps Fitzpatrick had said he found in reviewing the grand jury proceedings in the case were statements to the panel by acting U.S. Attorney Lindsey Halligan, a former personal lawyer to President Donald Trump who had no prosecutorial experience.
Halligan’s office and the Justice Department declined to comment. Prosecutors quickly appealed the ruling, asking U.S. District Judge Michael Nachmanoff to put Fitzpatrick's order on hold, arguing that the magistrate judge “may have misinterpreted some facts” in his order, which they said is “contrary to law.”
Later Monday, Nachmanoff granted prosecutors' request and asked the government to file its objections to Fitzpatrick’s order by 5 p.m. on Wednesday and asked Comey’s team to do the same by 5 p.m. on Friday.
In his ruling, Fitzpatrick wrote that the court "identified two statements by the prosecutor 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."
He further questioned Halligan's claim that the government had already shared all the available grand jury information, pointing to what appeared to be gaps in the transcript.
A different federal judge — Cameron Currie of the District of South Carolina — raised a similar concern last week during a hearing on whether to disqualify Halligan from the case because of questions about the legality of her appointment. Halligan then submitted a sworn declaration asserting that all the information had been turned over.
While Currie has yet to rule on the issue, Fitzpatrick was skeptical of Halligan's account, finding the timing she cited in her declaration did not add up.
"If the prosecutor is mistaken about the time she received notification of the grand jury’s vote on the original indictment, and this procedure did take place, then the transcript and audio recording provided to the Court are incomplete," Fitzpatrick wrote.
"If this procedure did not take place, then the Court is in uncharted legal territory in that the indictment returned in open court was not the same charging document presented to and deliberated upon by the grand jury," he added.
Fitzpatrick also pointed to the government's handling of potentially privileged attorney-client information.
“The nature and circumstances surrounding the government’s potential violations of the Fourth Amendment and court orders establish a reasonable basis to question whether the government’s conduct was willful or in reckless disregard of the law,” he wrote.
Trump named Halligan acting U.S. attorney for the Eastern District of Virginia in late September, after her predecessor, Erik Siebert, resigned under pressure from the administration to charge Comey and another perceived Trump adversary, New York Attorney General Letitia James.
Halligan presented the case to the grand jury on her own just days after having been appointed — and despite career prosecutors in her office sending her a memo documenting why they believed Comey should not be charged, a senior law enforcement official previously told NBC News.
Fitzpatrick grilled the government on its conduct at a hearing this month, when he said prosecutors had appeared to have taken an “indict first, investigate later” approach to the case.
He noted in his ruling that it's highly unusual for a defendant to gain access to grand jury materials but found that the Comey case is “a rare example of a criminal defendant who can actually make a ‘particularized and factually based’ showing that grounds exist to support the proposition that irregularities may have occurred in the grand jury proceedings and may justify the dismissal of one or more counts of the indictment.”
“That task may lie ahead,” Fitzpatrick wrote, but for now, “the Court is finding that the government’s actions in this case — whether purposeful, reckless, or negligent — raise genuine issues of misconduct, are inextricably linked to the government’s grand jury presentation, and deserve to be fully explored by the defense.”
Comey was indicted on two counts, making a false statement and obstruction of a congressional proceeding — both charges stemming from testimony he gave before the Senate in 2020. He pleaded not guilty.
In a court filing Monday, James asked the judge presiding over her case to allow her to see some of the grand jury material in that case. Halligan was the sole prosecutor before the grand jury in that case as well.
James' attorneys want to review Halligan's legal instructions, as well as her answers to any legal questions from members of the grand jury "to ensure they did not include incorrect statements about the law."
