Judge Says DOJ ‘May Have Tainted’ Grand Jury Proceedings in Case Against Comey

In its rush to indict former FBI director James Comey, the Justice Department “may have tainted the grand jury proceedings,” a federal judge said Monday.

Lindsey Halligan, the former White House lawyer President Donald Trump appointed to lead a U.S. attorney’s office in Virginia with explicit expectations to settle a score with his political enemies, has now been ordered to turn over all the grand jury materials to Comey’s lawyers — an unusual step that denotes how this case is already spiraling out of control.

In a 24-page opinion, Magistrate Judge William E. Fitzpatrick described how Halligan may have crossed the line by having an FBI special agent who had previously reviewed “potentially privileged information” testify before the grand jury.

“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,” the judge wrote.

FBI agents, who were investigating whether Comey lied to Congress when denying that he leaked information to journalists, looked through the private messages of Daniel Richman, a Columbia University professor who was both Comey’s friend and once his personal lawyer. Some of that material, which was seized for a separate investigation in 2019 and 2020, was previously deemed “privileged” and inaccessible to government agents, but agents tapped it this time around to build the current case against Comey.

Grand jury deliberations are normally kept sealed even after a case is over, but the judge telegraphed that they could be released at some point given how central they now are to core issues that could upend the case, especially now that defense lawyers could use them to undermine the prosecution.

“It is also important to note that the grand jury materials are not being made public, at least

not yet,” he added.

These missteps also highlight Halligan’s inexperience as a prosecutor — a particularly thorny issue, because Halligan took the rare step of presenting the case before the grand jury herself, a task that would normally be left to a seasoned assistant U.S. attorney. Pointing to redacted portions of the grand jury transcript, the magistrate judge noted that Halligan fumbled when she indicated that Comey would have to explain himself. Any person charged with crimes has a Fifth Amendment right to remain silent and not incriminate themselves.

“The prosecutor’s statement ... may have reasonably set an expectation in the minds of the grand jurors that rather than the government bear the burden to prove Mr. Comey’s guilt beyond a reasonable doubt at trial, the burden shifts to Mr. Comey to explain away the government’s evidence,” Fitzpatrick wrote.

The judge said Halligan then made a second error behind closed doors by nudging grand jurors into indicting Comey by referencing evidence that she didn’t even present to them.

Halligan “clearly suggested to the grand jury that they did not have to rely only on the record before them to determine probable cause but could be assured the government had more evidence — perhaps better evidence — that would be presented at trial,” Fitzpatrick wrote.

Making matters even worse for the DOJ, the judge also questioned how Halligan managed to turn in two versions of the indictment: a three-count indictment that had one count rejected by the grand jury and the two-count version that remains active in this case. Normally, a failed indictment would force a prosecutor to present the case a second time with a pared-back charging document to get the grand jury’s approval. But given Halligan’s decision to hand over to the court both versions, the magistrate judge openly questioned whether she cut corners.

“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. Either way, this unusual series of events, still not fully explained by the prosecutor’s declaration, calls into question the presumption of regularity generally associated with grand jury proceedings,” Fitzpatrick wrote, noting that the situation allows Comey’s lawyer to “challenge the manner in which the government obtained the indictment.”

Last week, Halligan signed a declaration explaining that she presented the case in front of the grand jury for two hours and 10 minutes on a Thursday afternoon, then returned only after they finished deliberating for another two hours.

Halligan’s office did not respond to a request for comment.

When the lead prosecutor in the Eastern District of Virginia hesitated to file criminal charges against Trump’s shortlist of enemies, the president turned to Halligan, who served as his defense attorney when classified documents were found at his Mar-a-Lago mansion after he left the White House following his first term. She had never prosecuted a case by the time she took on high-profile cases against Comey and New York Attorney General Letitia James this fall.

Halligan is now fighting to stay on both cases, and a separate South Carolina federal judge who was brought in from outside the Virginia district is currently considering pending requests to disqualify her. That ruling is expected by Thanksgiving.