A federal judge in Virginia said the Justice Department’s actions in former FBI Director James Comey’s case raise “genuine misconduct issues” that merit dismissal of the charges.
Former FBI Director James Comey pleads not guilty to lying to Congress
Former FBI Director James Comey has pleaded not guilty to charges of lying to Congress and obstructing Congress in Alexandria, Virginia.
- Prosecutor Lindsey Harrigan, President Donald Trump’s former personal lawyer, appears to have made a “fundamental misrepresentation of the law” to the grand jury that indicted Comey, the judge wrote.
- The judge also expressed concern about whether the government improperly used information protected by attorney-client privilege to prepare the case for the grand jury.
A federal judge in Virginia said there may be grounds to dismiss the case in a scathing opinion that highlighted a number of potential irregularities in the way the Justice Department under President Donald Trump secured the prosecution of former FBI Director James Comey.
The record “points to an alarming pattern of serious investigative errors, errors by FBI agents and prosecutors that potentially undermined the integrity of the grand jury process,” Judge William Fitzpatrick wrote on Nov. 17.
Mr. Fitzpatrick issued his decision based on Mr. Comey’s request to see documents from the grand jury that indicted him on September 25. These materials are typically kept secret, even by the defendant, but Fitzpatrick said the circumstances of Comey’s case justified giving him access.
“The government’s conduct in this case, whether intentional, reckless, or negligent, raises questions of genuine misconduct, is germane to the government’s grand jury statements, and deserves thorough examination by the defense,” the judge wrote.
Mr. Fitzpatrick ordered the court clerk to provide Mr. Comey with grand jury materials by 3 p.m. EDT, and for prosecutors to provide Mr. Comey with a “complete audio recording” of the grand jury proceedings by 5 p.m. EDT.
Mr. Comey’s lawyer declined to comment. The Justice Department did not immediately respond to a request for comment, but within hours it filed a motion to suspend the order, saying Fitzpatrick “may have misunderstood some facts.” It said it would take a week to express its opposition more fully.
Comey was charged in 2020 with lying to Congress and obstructing Congress while testifying before a Senate committee. The charge carries a maximum sentence of five years in prison, but federal sentences are usually less than the maximum sentence. The former FBI director had publicly proclaimed his innocence, but pled guilty in early October.
Mr. Fitzpatrick was elected to the position by all district judges in the Eastern District of Virginia in 2022 and is serving an eight-year term as a judge in the district. He is a former federal prosecutor who served for many years under both Democratic and Republican presidents.
The judge raised a series of potential questions about how Comey, a longtime critic of Trump, could be prosecuted. Trump’s former personal attorney, newly appointed prosecutor Lindsey Harrigan, took over around September 20, the day Trump posted on social media that Comey was “thoroughly guilty” and that delay was not an option. Harrigan secured the indictment on September 25, just five days before the legal deadline to file charges expired.
Harrigan was appointed after the former head of the U.S. Attorney’s Office for the Eastern District of Virginia, which she now runs, expressed skepticism about the possibility of a case against Comey.
Fitzpatrick wrote in a Nov. 17 opinion that there is evidence suggesting the government may have used information protected by the attorney-client privilege to prepare its presentation to the grand jury, even if it did not actually present the privileged communications to the grand jury.
“This is particularly troubling because the government’s only witness before the grand jury was exposed to a ‘limited overview’ of privileged material immediately before testifying,” the judge wrote.
In its request to stay the order, the Justice Department said the “primary focus” of Fitzpatrick’s investigation was whether privileged information was shared with the grand jury, and that the judge appears to have resolved that issue in the government’s favor. The paper said it was “premature” to address other issues because Comey and the government have not presented a complete case on those issues.
Mr. Fitzpatrick also expressed concern about whether accurate information was given to the grand jury. He said two statements Harrigan made to grand jurors “appear to be fundamental misstatements of the law that could undermine the integrity of the grand jury process.”
Harrigan’s statements are redacted in Fitzpatrick’s opinion. Still, the judge said there were potential problems with the statement.
One of the statements Mr. Fitzpatrick wrote misstated the law, writing that it “may have created a reasonable expectation in the minds of the grand jurors” that the government did not have the burden of proving Comey’s guilt at trial, but instead that Comey had the burden of explaining the government’s evidence. He said the statement was in response to “challenging questions from the grand jury.”
Fitzpatrick’s second statement “clearly suggested to the grand jury that it did not need to rely solely on the record before it to determine probable cause, and that it could be confident that the government had more evidence, and perhaps better evidence, that it would present at trial,” Fitzpatrick wrote.
In its request to suspend the order, the Justice Department said Mr. Fitzpatrick may have misunderstood the “full context” of Mr. Harrigan’s statements, but did not provide further explanation.
Fitzpatrick wrote that defendants rarely have access to grand jury materials. But he said the records in Comey’s case justified that access because there was concrete evidence of wrongdoing that “may justify the dismissal of one or more of the charges.”
On October 29, District Judge Michael Nachmanoff, who is presiding over the entire Comey case, appointed Mr. Fitzpatrick to manage proceedings dealing with how the government handled privileged material obtained in the case. Nakhanov was appointed to the federal bench by former President Joe Biden.
While full district judges are appointed by the president and then confirmed to the role by the Senate, magistrate judges are appointed by the courts and may be called upon to handle serious criminal matters.
This story has been updated with additional information.
