Judge Says Justice Dept. May Have Committed Misconduct in Comey Case

The magistrate judge raised the question of whether “government misconduct” in the case might require dismissing the charges against the former F.B.I. director, James B. Comey, altogether.

A federal magistrate judge said on Monday that the criminal case against James B. Comey, the former F.B.I. director, could be in trouble because of a series of apparent errors committed in front of the grand jury by Lindsey Halligan, the inexperienced prosecutor picked by President Trump to oversee the matter.

The remarkable rebuke of Ms. Halligan came in a 24-page ruling in which the magistrate judge, William E. Fitzpatrick, ordered her to give Mr. Comey’s lawyers all of the grand jury materials she used to obtain the indictment and raised the question of whether “government misconduct” in the case might require dismissing the charges altogether.

In his ruling, Judge Fitzpatrick said that when Ms. Halligan appeared — by herself — in front of the grand jury in September to seek an indictment accusing Mr. Comey of lying to and obstructing Congress in 2020 testimony, she made at least two “fundamental and highly prejudicial” misstatements of the law. He also pointed out that the grand jury materials he ordered her to turn over to him for his review this month appeared to be incomplete and “likely do not reflect the full proceedings.”

“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,” Judge Fitzpatrick wrote.

As part of his ruling, the judge ordered prosecutors to provide Mr. Comey’s lawyers by Monday evening with the same grand jury materials that he himself has already looked at — a measure he described as “an extraordinary remedy.” Typically, grand jury notes are kept secret before trial, even from defendants and their lawyers.

But the disclosure was needed, Judge Fitzpatrick said, to permit Mr. Comey’s legal team to delve into the question of whether Ms. Halligan and an F.B.I. agent who testified in front of the grand jury had conducted themselves properly when they secured the indictment.

Minutes before the first portion of the grand jury notes were to be handed over to Mr. Comey’s legal team, prosecutors filed an emergency request seeking to halt Judge Fitzpatrick’s order. Calling it “contrary to law,” the prosecutors said they wanted to quickly raise objections to the ruling in front of Judge Michael S. Nachmanoff, the district court judge who is overseeing the case.

The ruling by Judge Fitzpatrick was only the most recent setback in the Justice Department’s efforts to bring charges against Mr. Comey — a decision that was initially rejected by Ms. Halligan’s predecessor as U.S. attorney for the Eastern District of Virginia, Erik S. Siebert. In an extraordinary move, Mr. Trump ousted Mr. Siebert in September to make way for Ms. Halligan after he suggested there was insufficient evidence to file an indictment against Mr. Comey.

Judge Fitzpatrick’s harsh words came just days after a different judge involved in the Comey case raised doubts about a separate question pertaining to Ms. Halligan: namely, whether Attorney General Pam Bondi had lawfully appointed her to her post as U.S. attorney in the first place. The judge overseeing that issue said she would make a decision on the matter by Thanksgiving.

The indictment against Mr. Comey charges him with lying to and obstructing Congress during an appearance he made in September 2020 in front of the Senate Judiciary Committee. At the hearing, he was asked questions about whether he had authorized anyone at the F.B.I. to serve as an anonymous source in newspaper articles about sensitive investigations.

Ms. Halligan, who had never worked on a criminal case until she was thrust into the Comey prosecution, has faced extensive scrutiny from the moment Mr. Trump installed her atop the U.S. attorney’s office in the Eastern District of Virginia against the wishes of many career prosecutors there. Her critics have pointed out that her previous experience in the law was limited to working as an insurance lawyer and serving as a personal lawyer to Mr. Trump.

It is extremely unusual for judges to examine how prosecutors act in front of grand juries, let alone to openly criticize their conduct. But that is exactly what Judge Fitzpatrick did to Ms. Halligan.

He noted that during her grand jury presentation she appears to have misrepresented a basic tenet of the law by suggesting that Mr. Comey did not have the right, under the Fifth Amendment, to avoid testifying at his own trial.

She also appears to have made another astonishing error, Judge Fitzpatrick said. In his ruling, he pointed out that she told grand jurors that they did not have to rely solely “on the record before them” to return an indictment against Mr. Comey, but instead “could be assured the government had more evidence — perhaps better evidence — that would be presented at trial.”

The judge also said that Ms. Halligan appears to have botched her efforts to pare down the three-count indictment she had initially sought against Mr. Comey after grand jurors rejected one of the charges. Moreover, he noted that the grand jury transcripts he later received from her did not appear to contain her presentation of the second, two-charge indictment to the grand jury, leaving the record incomplete.

If, however, a second presentation was never made, then the court “is in uncharted legal territory,” he went on.

That would suggest, he wrote, “that the indictment returned in open court was not the same charging document presented to and deliberated upon by the grand jury.”

“Either way,” the judge concluded, “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.”

Judge Fitzpatrick mentioned one more potential problem with the government’s grand jury presentation. He questioned whether the F.B.I. agent who was the sole witness to have testified may have inadvertently disclosed information that should not have been revealed because of the attorney-client privilege.

Ultimately, the decision about whether to dismiss the case based on these purported grand jury errors will lie with Judge Nachmanoff, the district court judge. Judge Nachmanoff has already scheduled a hearing for early December to consider separate but related claims by Mr. Comey’s lawyers that Ms. Halligan had abused the grand jury process.

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