Some errors may require dismissal of the charges. Some are being exaggerated.
Some errors may require dismissal of the charges. Some are being exaggerated.
L indsey Halligan, the dubiously designated interim U.S. attorney the Trump Justice Department installed to indict some of the president’s political enemies, committed a series of errors — some of which seem amateurish, some of which may be egregious, and not one of which is surprising in light of her inexperience — in persuading a grand jury to approve a two-count indictment against former FBI Director James Comey. That is the conclusion drawn by Magistrate Judge William E. Fitzpatrick in a 24-page memorandum opinion filed on Monday.
Predispositions About Halligan’s Inexperience
A couple of preliminary points before we dive in.
First, magistrate judges are not real Article III federal judges. It was less confusing prior to 1990, when they were known as “magistrates”; adding “judge” to the title led to the convention of calling them “judge.” That’s good for their self-esteem, I suppose, and spares the rest of us from having to repeat their unwieldy title, but it can be misleading (as when the press likes something they do and thus frames it as if it were an authoritative judicial ruling). Magistrate judges are lawyers — usually litigators (often former prosecutors) — who are not confirmed by the Senate and who work for the court. They are appointed to eight-year terms and assigned to assist the actual Article III judges in some laborious tasks, often involving preliminary fact-finding. Virtually nothing of consequence that they do is final unless a district judge endorses it.
Magistrate Judge Fitzpatrick is a former prosecutor in the U.S. attorney’s office in Eastern District of Virginia (EDVa) — the office that Halligan now leads. As a result of Monday’s ruling, he is being lauded in the anti-Trump press and vilified in MAGA circles. I don’t know what his politics are but I’m betting, given their comparative backgrounds, that he sees Halligan as a lightweight with political connections. It’s probably also relevant that Fitzpatrick’s prosecutorial experience was mainly in public corruption, an area in which — as the politicized prosecution of Comey illustrates — the Trump DOJ does not exactly shine.
That brings me to preliminary Point Two: Some of Halligan’s missteps are stunning to lawyers and journalists experienced in practicing law and covering criminal cases. And because many such observers are offended by the Comey prosecution — with good reason given that it is classic lawfare, brought by Halligan, clearly at Trump’s direction, after he banished her predecessor for refusing to bring it — there is unconcealed schadenfreude in the coverage of Fitzpatrick’s ruling. She is being depicted as an imbecile.
I doubt that’s the case, but there’s no question that she is in way over her head. For the president and his toadying attorney general to put someone with no prosecutorial experience in charge of one of the most important U.S. attorney’s offices in the country, and to have her start out flying solo in grand jury proceedings (which can be dicey), was reckless. Hence, I’m not a bit surprised that Halligan made a hash of things. The Comey case was hastily thrown together as the statute of limitations was about to expire, and the result is a charging document as incoherent as I’ve ever seen. (I still believe the fatal flaw in the case is not Halligan’s lack of statutory qualification and errors in the grand jury proceeding, but the indictment’s failure to state a crime.)
The Cited Errors Summarized
All that said, it is impossible to evaluate whether Halligan’s apparent errors in the grand jury proceeding warrant dismissal of the indictment — a grave step against which legal presumptions weigh heavily — without knowing something Magistrate Judge Fitzpatrick’s withering opinion doesn’t tell us, namely: How strong was the evidence Halligan presented to establish probable cause of the two charges? (Comey is alleged to have made a false statement to the Senate and, thereby, to have obstructed its oversight function.)
To be fair to Fitzpatrick, grand jury proceedings are secret, so he limited his opinion’s account of them. The presiding judge in the case, Michael Nachmanoff (a Biden appointee) told the magistrate judge to make findings of fact focusing on alleged errors; the errors thus look worse than they may be — especially given Fitzpatrick’s occasional sky-is-falling tone — because we don’t know what Halligan’s best evidence was. In light of the indictment’s weakness, I suspect it wasn’t too good. But that’s speculation. The salient point for now is: We can’t reliably assess how serious Halligan’s cited errors are because we’re still in the dark regarding the overall strength of her presentation.
According to Fitzpatrick, the errors in the grand jury presentation include the following: Halligan (a) violated Comey’s attorney-client privilege, potentially tainting the prosecution; (b) undermined Comey’s Fifth Amendment right against self-incrimination; (c) suggested that the grand jury should assume the government has more and better evidence against Comey than it presented at the proceeding; and (d) has yet to explain how the two-count indictment against Comey was presented to and approved by the grand jury.
Importantly, Fitzpatrick’s task is not to decide whether some or all of these errors occurred, and whether they require dismissal. The question is more limited: Should the grand jury minutes and exhibits be disclosed?
Arctic Haze and the ‘Filter Protocol’
Judge Nachmanoff assigned to Fitzpatrick the task of sorting out whether the prosecutors should be able to have access to Comey’s communications with Daniel Richman, the Columbia law professor who (1) worked as an FBI employee during part of Comey’s tenure as director; (2) represented Comey as an attorney after Trump fired Comey on May 9, 2017; and (3) was the subject (as was Comey) of a first-term Trump DOJ criminal investigation between 2017 and 2021 into whether FBI memos of Comey’s conversations with Trump, and potentially classified information from those memos, were illegally purloined and shared with the media. (The FBI investigation of what I’ll hereafter call “the Comey memos” was labeled “Arctic Haze.” I recently wrote, here, about the Richman angle.)
Arctic Haze was eventually closed without charges, but while ongoing it featured the FBI’s execution of search warrants on various of Richman’s digital devices and email accounts. The yield apparently included several communications between Comey and Richman, some of which may be covered by the attorney-client privilege (ACP), theoretically protecting them from government view.
To simplify a long and winding story, the issues related to the grand jury that Fitzpatrick’s opinion addresses were triggered by the request of Halligan’s prosecutors to have access to “the Richman materials” (shorthand for the communications seized from Richman’s devices and email accounts during Arctic Haze). When I speak of Halligan’s prosecutors, I’m referring to the veteran assistant U.S. attorneys who were brought in from North Carolina to handle the Comey case after she indicted it.
The prosecutors were asking for a “filter protocol,” which they would know — but Halligan and some FBI agents may not have known — is a necessary procedure when the government seizes evidence potentially shielded by the ACP. What’s supposed to happen is: A “clean team” of prosecutors and agents that is not involved in the case reviews evidence that may be covered by the ACP to ensure that the “case team” — prosecutors and agents assigned to handle the case — is not exposed to privileged material. If the case team is exposed, that is a constitutional violation that may require dismissal.
Asking for a filter protocol was the right call. In this instance, however, it may have been locking the barn after the horse was already out. Apparently, the FBI agents on the case had already reviewed the Richman-Comey communications and discussed them with Halligan, who made them central to the grand jury presentation.
Use of Attorney-Client Privileged Materials in the Grand Jury
It appears that one experienced FBI agent recognized the problem and raised it with the case team before the grand jury hearing on September 25. Yet, because the statute of limitations was about to expire (on September 30) — and, I suspect, because President Trump was publicly agitating for Comey to be charged — Halligan and the potentially tainted case agent went ahead with the hearing, at which the latter was the only witness.
In asking — 18 days after the indictment — for a filter protocol, the experienced prosecutors were hoping to get post hoc approval for potentially privileged evidence that had already been used. But Comey, Richman, and the Comey legal team are highly experienced former prosecutors, too. The prosecutors’ filter protocol request tipped them off that ACP material may have been used in the grand jury, and they pounced: demanding discovery of the Richman materials and of the grand jury proceedings. Fitzpatrick also seems to have been floored by government’s the cavalier handling of ACP material (which prosecutors are trained to regard as radioactive); he immediately ordered the prosecutors to disclose the full grand jury proceedings to the defense.
This was premature. In addition to being secret by law, grand jury materials are given a generous presumption of regularity. That’s because (a) the standard required to justify an indictment, probable cause, is a low threshold, (b) the rules of evidence do not apply, (c) the government is not required to present evidence favorable to the defense, and (d) even if evidence presented to the grand jury is later found to have been illegally obtained, that is not a sufficient legal basis to throw out the indictment (it is a basis to suppress the tainted evidence at trial).
Consequently, Halligan’s prosecutors appealed Fitzpatrick’s disclosure order to Judge Nachmanoff. The latter concluded that Fitzpatrick needed to make additional findings of fact that would justify the extraordinary remedy of fully disclosing the grand jury hearing.
That is the background necessary to understand the memorandum opinion Fitzpatrick issued on Monday. To be sure, he was complying with Nachmanoff’s directive. But understand that he has a motive to cast Halligan’s missteps in grave terms: He had already announced his conclusion that Comey should get access to the grand jury proceedings; now, he was essentially being told to justify that determination.
From there, let’s take the alleged errors one by one.
The Richman Materials
This is the issue that most animated Fitzpatrick. To boil it down, in 2019 and 2020, the FBI executed the search warrants on Richman’s accounts. There was never a prosecution of Richman, or anyone else, regarding the Comey memos, but even though the investigation was closed the FBI kept the seized Richman materials.
Fast forward: By the summer of 2025, the EDVa U.S. attorney’s office and the FBI were investigating Comey in connection with what turned out to be the alleged false statement and obstruction crimes — allegations unrelated to the Arctic Haze investigation. Nevertheless, because the new Comey probe finally settled on Richman as “Person 3” in the indictment — the FBI subordinate Comey had supposedly authorized to be a confidential source in media reporting — the investigators decided to reexamine the Richman materials to search for incriminating Comey-Richman communications.
Fitzpatrick’s position is that the government should have gotten a new search warrant before reviewing these materials. That would have been prudent, but I don’t think the magistrate judge is correct in principle. That is, if the government had properly executed the warrants in 2019-20, and had conducted a proper filter protocol to vet the Richman materials for ACP purposes, then the FBI would currently possess nothing more than properly seized evidence. If the government has legitimately seized evidence in the first instance, it need not get a new search warrant to reexamine that evidence for purposes of a different case.
Nevertheless, Fitzpatrick does appear to be correct that the Richman materials, as originally obtained and handled, raise major constitutional problems.
The search warrants imposed temporal limits on which of Richman’s communications the FBI was permitted to search, and substantive limits on what the FBI was permitted to seize — namely, communications relevant to crimes of stealing government property (the Comey memos) and illegally transmitting national defense information. According to Fitzpatrick, those limits were ignored: The government grabbed digital files indiscriminately. Furthermore, although it set up a filter protocol of sorts, it did not invite Comey to participate — even though Comey was a subject of the Arctic Haze investigation and, as Richman’s client, was the holder of the ACP. (The ACP belongs to, and protects, the client, not the attorney.)
Consequently, even if Fitzpatrick is wrong to maintain that Halligan and the FBI should have gotten a search warrant in 2025 before reviewing materials that have been in the FBI’s possession for six years, he is surely right that (a) the government may have impermissibly used — even built its case around — evidence that violates Comey’s ACP; and (b) there may be grounds to suppress the Richman materials (or at least some of them) as illegally seized. The latter issue, in my view, is not a basis for disclosing grand jury proceedings or dismissing an indictment; the former, to the contrary, may very well be.
Comey’s Fifth Amendment Privilege
Halligan made a rookie mistake that Fitzpatrick hyperbolizes into a heinous offense.
Good U.S. attorney’s offices don’t throw new prosecutors into the deep end of the pool by having them handle grand jury presentations without supervision. There are 23 grand jurors, the vast majority are not lawyers, and they get to ask questions — many good and penetrating, some off-the-wall. The prosecutor is the grand jury’s legal adviser. It’s a role that calls for both knowledge of the law and tact in dealing with people, attributes that come with experience.
It’s impossible to know exactly what was said in the grand jury because the proceedings are still secret, so when Fitzpatrick quotes from them, those quotes are blacked out of his opinion. But we get the gist of what happened because he does not redact his reasoning. It looks like the grand jurors asked Halligan some challenging questions, and at some point she made an ill-considered remark to the effect that if her answers hadn’t been satisfactory, it would be left to Comey to provide the answers at trial.
Experienced prosecutors know that any remark they make in front of a trial jury that even vaguely suggests that the defendant has failed to testify or has a burden to prove his innocence is ground for a mistrial or reversal on appeal of any conviction. But what’s at issue presently is a grand jury proceeding, not a trial, so the germane question is whether the grand jury was presented with probable cause to approve the charges. Fitzpatrick doesn’t suggest any improper implication by Halligan that Comey had some duty to testify before the grand jury. In sum, it looks like Halligan made a dumb comment — one that could be disastrous for a trial prosecutor but, in a grand jury presentation, may have been insignificant. We can’t judge that because we are told only about the error, not about whether the error may have been harmless when the strength of the probable cause showing is factored in.
Speculation on Evidence Not Presented
The next error is weightier. According, the magistrate judge, Halligan said something that may have led the grand jurors to believe “they did not have to rely on the record before them to determine probable cause but could be assured that the government had more evidence — perhaps better evidence — that would be presented at trial.”
It is elementary that the grand jury is supposed to consider the evidence in the record and not make assumptions about other evidence the government may or may not have. Again, it’s impossible to assess the degree of prejudice this error caused, if any, without knowing how strong the probable cause showing was.
The No True Bill and the Mysterious Filing of the Two-Count Indictment
The details about when and how the grand jury returned the indictment are confusing. What we know (which is incomplete) suggests that there were communications between the grand jury and Halligan’s office that have not been produced to the court — and, as I recounted over the weekend (here and here), may not have been recorded.
Halligan initially proposed a three-count indictment, which included a false statement charge that the grand jury ultimately rejected. She has represented to the court that, after presenting her evidence on September 25, she left the grand jury to deliberate on the three-count indictment at 4:28 p.m. She further maintains that there was no contact between the grand jury and any government officials after that time.
Yet, she also says that, at 6:40 p.m., she was notified by a senior prosecutor (who has since left Halligan’s office) that the grand jury had approved only two of the three counts. As Fitzpatrick notes, this raises the question of how the senior prosecutor knew that detail if no government official had had contact with the grand jury. In any event, at some point, a second indictment was prepared, containing only the two counts the grand jury had indicated it would approve. But there is no record of how that new, two-count indictment was presented to the grand jury.
Halligan says that after she got the 6:40 p.m. call, a new indictment was prepared, reflecting only the two charges that the grand jury approved. What happened next is unclear. The record reflects that Halligan appeared with the grand jury at 6:47 p.m. to return the indictment (i.e., to file it in federal district court) in a proceeding before EDVa Magistrate Judge Lindsey Vaala. As Fitzpatrick observes, it is not possible that, within that seven-minute span, Halligan prepared a new indictment, presented it to the grand jurors, gave them legal instructions, provided them an opportunity to deliberate and vote, and was then ready to return a fully executed indictment to the court.
But was it really necessary to go through all those steps? I doubt it.
Fitzpatrick has ominously described this situation — a grand jury rejecting one charge in a three-count proposed indictment, then approving a subsequently proposed two-count indictment that omitted the rejected charge — as “uncharted legal territory.” Perhaps, but it doesn’t seem so ominous to me. Halligan may have believed (maybe even in consultation with more experienced prosecutors in her office) that there was no impropriety in simply swapping out the original indictment (containing the disapproved count) for a clean indictment (containing only the two approved counts). What harm could there be as long as both documents were executed and preserved?
I suspect — though I can’t know for certain — that there was no second grand jury presentation. Rather, I surmise that, when she got to court around 6:47 p.m., before Magistrate Judge Vaala entered, Halligan showed the grand jury, or at least the foreman, the newly drawn two-count indictment; I expect that the foreman, upon being assured that the two counts in the new indictment were the same was the two counts the grand jury had already approved from the original three-count indictment, simply signed it — just as he had signed the first one (with the no true bill, which reflected that at least one count had been rejected).
The court record indicates that there was confusion. Halligan appeared not to realize that she had signed two documents (I suspect because she had probably signed the first proposed indictment hours earlier, before the grand jury presentation began, whereas she had signed the second one in just the last few minutes). The original three-count proposed indictment was incorrectly numbered (it had a “Count One,” two charges labeled “Count Two,” and none labeled “Count Three”). And, as Fitzpatrick says, it at least initially appeared that the grand jury had rejected all three proposed counts in the first indictment. (I suspect that’s because a “no true bill” form usually refers to the entire indictment. It’s rare to get a no true bill at all, and even rarer to get one that rejects only one count while others are approved. It wasn’t until Magistrate Judge Vaala perused the documents and asked some questions that the situation was clarified — i.e., the grand jury had approved two charges and rejected a third.)
To me, this is irregular but hardly a shredding of the Constitution. If the final indictment that was filed accurately reflects the two counts the grand jury approved, I don’t see why a second grand jury presentation would have been necessary. And as long as the no true bill document is preserved, giving Comey notice and an opportunity to object to any irregularities it implies (as he is doing), I don’t see the harm.
Conclusion
Lindsey Halligan didn’t know what she was doing, and it shows. But let’s keep it in perspective.
The Richman materials may be a huge problem if it turns out that Halligan elicited privileged communications, or at least built her case based on privileged communications to which she and the agents had access. That should be the biggest concern: If it happened, the indictment will be thrown out, Halligan and others exposed to ACP information will be disqualified, and it could be nigh impossible to reindict the case.
The other apparent errors are more along the lines of embarrassing amateur hour than substantial prejudice. The alleged allusions (which seem vague) to an onus on Comey to prove his innocence and to evidence the government did not present (and may not possess), may be negligible at the grand jury phase if the probable-cause showing for the two charges brought was strong. (I suspect it was not because the indictment is incoherent — but that’s a different issue.) And if the two-count indictment document accurately reflects the two charges that the grand jury actually approved, it shouldn’t be the end of the world that a ministerial change — substituting the two-count document for the original three-count document — was made without a full-blown representation of the case to the grand jury.
I believe Judge Nachmanoff should and will direct that the government provide the defense with grand jury materials to the extent they show prosecutorial reliance on potentially privileged communications between Comey and Richman. In addition, all of the Richman materials must be provided to the defense (that should have been done weeks ago), with full disclosure of those to which Halligan and the case agents had access prior to the grand jury proceeding (and at any time since).
Presumably, that will lead to additional defense motions to throw out the charges.
Author’s notes: I’ve made minor, non-substantive edits since this piece was published