AP: “Ex-FBI Director James Comey indicted on charges of lying to Congress and obstruction”

Politics & Elections
141

I’m not certain of this post, but:

If this case isn’t dismissed, Trump is going to insist on conviction just as he insisted on the indictment. I do not see how he could avoid threatening the jury AKA jury tampering. Any judge who can see two steps in front of themselves will see that a trial would be an unfair impossibility, and dismiss.

If SCOTUS allows the Comey dismissal to become permanent, and we are very lucky, Trump could just sit and stew, making vague threats. But if there’s a second dismissal, Trump has to either start getting at his enemies in an extrajudicial manner, or become something approaching a powerless lame duck.

By extrajudicial, I mean ordering people locked up by whatever law enforcers are loyal to the dictator. In our Trump 47 context, it could be the FBI, ICE, or maybe even a red state National Guard military police unit.

Am I sure? No, but Trump 47 is acting like a regular dictator. Dictators don’t just give up because a couple judges didn’t get the message.

P.S. However, there is one alternative short-time dictator I’ve posted about before, who did just give up – Indira Gandhi. India was lucky (and deserving, because polled public opinion AKA the people eventually turned against her).

142

Moderating:

Let’s not get too far off track with speculation about what might happen, unless you’ve got a good legal basis upon which you can rest that speculation. This thread is to discuss what is actually happening, not get into hijack territory about how insane Trump might get.

143

Just summarizing other smart people’s thoughts on the case.

It really feels like you shouldn’t be able to bring charges so openly vindictive like this. We’ll see.

Late: looks like prosecutor Halligan got day drunk and texted a reporter about the James case. I’ll post it tomorrow in the James indictment thread.

144

The judge doesn’t appear to be very impressed with how the DOJ handled this case and has ordered them to hand grand jury materials over to the defense team:

145

Am I correct in thinking the likelihood of the charges getting dismissed with prejudice just increased significantly?

…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.

And this statement sounds like someone could end up with misconduct charges and some type of sanctions. Am I reading this correctly?

146

you are indeed. the comey case was very, very, shaky to begin. it has gotten worse and worse and the misconduct has been breath taking at times.

no real lawyer wanted anything to do with it. a lawyer with no grand jury experience jumped in and the ignorance has been breath taking. the “lawyer” who jumped when trump said jump, may not be a lawyer for long.

here is the pdf that was posted today.

gov.uscourts.vaed.582136.191.0_1.pdf

147

I mean, holy shit, this sounds like it should:

Those problems, wrote Magistrate Judge William Fitzpatrick, include “fundamental misstatements of the law” by a prosecutor to a grand jury that indicted Comey in September, the use of potentially privileged communications in the investigation and unexplained irregularities in the transcript of the grand jury proceedings.

I mean, all three of these things are fundamental to properly enforcing the law. You need to know what the law is, and instruct the Grand jury accordingly. You need to keep proper records of everything that happens in court. And you need to respect attorney/client privilege. Even a lawyer trained entirely on Law & Order episodes would know that much.

148

The case will be dismissed with prejudice.

re: Prosecutor and FBI misconduct.

FBI. Not sure if this is just a norm to follow or what. Basically, it’s hard for a person to not be biased when they read privileged communications about a Defendant. As a clear example, if the FBI agent reads an email from Defendant to Attorney that says “I killed Julie” it’s hard to forget that and to unbiased testify only about evidence that would actually come in front of a jury. So they have filter teams that go in and remove the privileged communications and then give the filtered evidence to an FBI agent to review/testify about. That was not done here. So the FBI agent read through a lot of evidence that likely included privileged emails and also was the same agent that testified to the grand jury. Is that the FBI agent’s misconduct or not, I don’t know.

Prosecutor. Where to start. I think some are just she doesn’t know what she is doing versus intentional misconduct, but maybe not and it doesn’t matter. I imagine the Judge will include all of them when the case is dismissed.

Late: Some of the misconduct was many years ago. While completely relevant to this case/dismissal, my post above is about the recent actions that happened this year.

149

IMO, it comes down to 2 factors: how egregious the Mag J feels the actions were; and how concerned the Mag J is about covering his ass.

Some decision-makers will say, “Fuck it. This is the right decision. So I’m just gonna make it, and if it gets appealed and reversed, so be it.” A dismissal can seem to be a pretty bold decision - especially in a high profile case. Other decision-makers will bend over backwards to give the benefit of the doubt to folk who are pretty clearly acting in bad faith, and will go to great (excessive?) lengths to get to the point where they can dispose of a case in a less bold manner, that will be less subject to criticism/reversal.

150

Possible that the charges laid were based on a version of the indictment not presented to the jury?

If I’m understanding this thread correctly, the story is thus: The grand jury was presented with an indictment with three charges. It voted to indict on the second and third, but not on the first. The indictment which was used to lay charges against Comey only contained those two charges. But that makes it a distinct indictment, which must itself be presented to the grand jury. Part of the basis for thinking that the previously presented grand jury transcripts were incomplete were because they did not contain the presentation of the two-charge indictment, just the three-charge one. But now the government is saying that there is no missing part of the transcript. The court thinks they’re either lying about the transcripts, or they didn’t present the indictment to the grand jury. From the judge’s findings:

The short time span between the moment the prosecutor learned that the grand jury rejected one count in the original indictment and the time the prosecutor appeared in court to return the second indictment could not have been sufficient to draft the second indictment, sign the second indictment, present it to the grand jury, provide legal instructions to the grand jury, and give them an opportunity to deliberate and render a decision on the new indictment. 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.12 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, and provides another genuine issue the defense may raise to challenge the manner in which the government obtained the indictment. [bold added]

I am not a law-talking person, but I’m pretty sure this is not good for the prosecution.

151

They couldn’t convict a ham OR Subway sandwich.:slightly_smiling_face:

152

I was struck by this phrase: “…the prosecutor made statements to the grand jurors that could reasonably form the basis for the defense to challenge whether the grand jury proceedings were infected with constitutional error.”

“Infected with constitutional error” also sounds pretty bad for the prosecution.

153

Meanwhile, Trump just retweeted this. That’s aging well…

154

One notes that 3/4ths of those people are Republicans.

155

there is this bit from pg 8…

Of equal concern is whether the government complied with a fundamental requirement of
the Fourth Amendment and with the plain language of the warrants that it may seize only those
materials specifically authorized by the Court. Under long-standing Fourth Amendment
precedent, the government may search for and seize only those materials expressly authorized by
the terms of a search warrant issued in connection with specific predicate offenses.

and pg 9

Here, the government was permitted to search all of the Richman materials but authorized
to seize only evidence related to violations of 18 U.S.C. § 641 (Theft and Conversion of Stolen
Government Property) and 18 U.S.C. § 793 (Unlawful Gathering or Transmission of National
Defense Information), both markedly different offenses than those with which Mr. Comey is
currently charged.

pg 11

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. 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.6
The Arctic Haze investigation was closed in September 2021, with no
charges filed. The Richman materials sat dormant with the FBI until the summer of 2025, when
the Bureau chose to rummage through them again.

Inexplicably, the government elected not to seek a new warrant for the 2025 search, 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. The
Court recognizes that a failure to seek a new warrant under these circumstances is highly unusual.

The Court also recognizes that seeking a new warrant under these circumstances would have
required a fresh legal analysis and likely resulted in some delay, a delay the investigative team
could not afford given that the statute of limitations would expire in a mere 18 days. See 18 U.S.C.
§ 3282(a).

pg 13

. Sometime between September 12, 2025 and September
25, 2025, Agent-2 reviewed the newly seized materials and, not surprisingly, identified
communications involving Mr. Comey and Mr. Richman as potentially privileged. ECF 172-2.
The government presented this case to the grand jury on September 25, 2025. ECF 1. The
same day, prior to the grand jury presentment, Agent-2 alerted the lead case agent (hereinafter
referred to as Agent-3) and an attorney with the FBI’s Office of General Counsel that “evidence
obtained in the Government’s investigation of James Comey may constitute attorney-client
privileged or attorney-client confidential information. It is also possible that [the agents] may have
obtained evidence that constitutes attorney work-product information.”8
ECF 89-5. Agent-2 gave
Agent-3 and the FBI attorney “a limited overview of the [privileged] communications.” ECF 172-
2.9
Agent-3, rather than remove himself from the investigative team until the taint issue was
resolved, proceeded into the grand jury undeterred and testified in support of the pending
indictment. ECF 179. In fact, Agent-3 was the only witness to testify before the grand jury in
support of the pending indictment. Id. 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.

not looking good.

156

pp 15- 17

statement of the prosecutor to the grand jury

this is very, very, bad. misrepresentation and non presenting of the second indictment to the grand jury.

pg 17

The second indictment was a new
indictment and therefore the undersigned concluded after reviewing the grand jury transcript that
the prosecutor would have presented the second indictment to the grand jury for consideration
before it was returned in open court. It now appears that may not have happened.
On November 14, 2025, the prosecutor filed a declaration with the Court attempting to
address the issue of whether the transcript of the grand jury proceedings filed with the Court was
the full and complete transcript. ECF 187-1. The prosecutor stated that after the grand jury was
left to deliberate on the first indictment at approximately 4:28 p.m., she had no further contact with
the grand jury. The prosecutor further stated that at approximately 6:40 p.m. she was notified by
the then-First Assistant United States Attorney that the grand jury returned a true bill on only two
of the three counts presented by the government.
11 Id. The prosecutor, according to her declaration,
then proceeded to the courtroom for the return of the indictment. Id. The hearing on the return of
the indictment began at approximately 6:47 p.m. ECF 10.
The short time span between the moment the prosecutor learned that the grand jury rejected
one count in the original indictment and the time the prosecutor appeared in court to return the
second indictment could not have been sufficient to draft the second indictment, sign the second
indictment, present it to the grand jury, provide legal instructions to the grand jury, and give them
an opportunity to deliberate and render a decision on the new indictment. 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.

footnote:11
If the Court is to read the prosecutor’s declaration as suggesting there was no contact between any
government official and the grand jury after 4:28 p.m., then it begs the question of how the then-First Assistant learned
that the grand jury had refused to indict on one count, and how the First Assistant knew which count had been rejected
by the grand jury, all before the indictment was returned in open court.

pg 18

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, and provides another genuine issue
the defense may raise to challenge the manner in which the government obtained the indictment.

157

pp 20-

findings of the court. whoa. 7 out of 11 findings start with: reasonable basis for the defence.

this one is really bad.
Tenth, as discussed in Section IV above the prosecutor made statements to the grand jurors
that could reasonably form the basis for the defense to challenge whether the grand jury
proceedings were infected with constitutional error. that is the very, very bad misrepresentation from pg. 15 statements of the prosecutor to the grand jury.

VIII. Conclusion
The Court recognizes that the relief sought by the defense is rarely granted. 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.
Therefore, in this case, “the Court has before it 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.” See Naegele, 474 F. Supp. 2d at 10 (citations
omitted).

158

Prosecutor brought 3 charges and grand jury no billed one and returned two. Somehow, two indictments came back both signed by foreperson and prosecutor - one with all 3 charges and the other with only the two (both versions are linked up thread). Prosecutor handed both to the Judge who said he had never seen that before and filed them both for the record.

One of the errors is re: prosecutor’s comments to grand jury that Comey would testify at trial. Obviously he has a constitutional right to not testify.

159

The question at this point should be whether Lindsey Halligan will be disbarred and/or suffer other sanctions. Trump’s incompetence reaches far and wide and infects everything he touches. Poor old Rudy Giuliani got it in spades! :grin:

160

“Poor old Deserving sumbitch Rudy Giuliani got it in spades!”

Fixed it.