Judge says James Comey indictment may be tainted by ‘profound investigative missteps’

By Katelyn Polantz, CNN

(CNN) — A federal judge on Monday scorched the Justice Department’s handling of years-old evidence in its case against former FBI Director James Comey, raising the possibility that the indictment may be tainted.

“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,” Magistrate Judge William Fitzpatrick of the Eastern District of Virginia wrote in an opinion released Monday.

Fitzpatrick’s finding that Comey’s rights may have been violated with the use of the evidence collected in another investigation more than five years ago sets the table for Comey’s team to make a more robust challenge of the indictment and ask the court to dismiss it.

“Here, the procedural and substantive irregularities that occurred before the grand jury, and the manner in which evidence presented to the grand jury was collected and used, may rise to the level of government misconduct resulting in prejudice to Mr. Comey,” the judge wrote.

Access to evidence from a previous investigation

Fitzpatrick said the Justice Department accessed old evidence it seized in searches of online accounts from Comey’s friend and then-lawyer Daniel Richman, for a prior leak investigation that didn’t result in charges.

The judge said DOJ did so without a new court-approved search warrant. Nor did investigators take time this year to sift out confidential attorney-client communications when it charged Comey at the end of September, knowing some of that evidence might not be able to be used, he said.

“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 the prior investigation of Richman, Fitzpatrick wrote, “and apparently, in the government’s eyes, to do so again anytime they chose.”

Comey’s defense will get access to records by later Monday afternoon, the judge said, that capture what happened in the grand jury when interim US Attorney Lindsey Halligan secured the indictment against him in late September.

“These materials are essential if Mr. Comey is to fully and fairly defend himself in the face of the irregularities that have characterized this investigation from its inception,” Fitzpatrick wrote on Monday. “The Court finds that the institutional concerns for grand jury secrecy are greatly outweighed by Mr. Comey’s right to Due Process.”

The judge called the Justice Department’s decision this fall not to seek a new search warrant that would have been court approved to access the old evidence from Richman “inexplicable” and “highly unusual.” He also noted that it was “foreseeable” Richman’s electronic devices might contain attorney-client communications with Comey, and the department had known this for years, even excluding Comey from its evidence processing years ago.

The judge also revealed for the first time that an agent had warned others at the FBI about the use of Richman’s data on the same day Comey was indicted in September — just a few days before the window when the department could bring a case would close.

One of the FBI agents who had been warned of potentially tainted evidence, the judge said, still “proceeded into the grand jury undeterred,” testifying to the grand jurors as the only witness, about evidence from the old searches of Richman.

The judge also slammed statements Halligan made to the grand jury, adding that the prosecutor appears to have made a “fundamental and highly prejudicial misstatement of the law” regarding Comey’s ability to testify at his own trial and about his legal burdens if he were charged. The exact words Halligan said to the grand jury are redacted in the judge’s opinion on Monday.

Comey’s team will be able to ask the court to dismiss charges against him – including because of what Halligan and the FBI agent witness said to the grand jurors by next week.

The case, alleging Comey lied to Congress in 2020 about his interactions with Richman, currently is set to go to trial just after New Year’s Day. A separate judge is weighing whether Halligan has the authority to have secured the indictment against Comey, given that she is not a Senate-confirmed political appointee.

Timing of grand jury hearing

The magistrate judge also raised significant questions about the timing of the grand jury deliberations and two hours for which there is no grand jury transcript, which Halligan has outlined in a sworn statement recently and said tracked with the grand jury’s deliberations, which wouldn’t have been recorded.

“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 also 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.”

“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,” Fitzpatrick added.

The DOJ previously had fought the court’s ability to provide the grand jury records to Comey’s team.

CNN has reached out to DOJ for comment.

This story has been updated with additional details.

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