The indictment of former FBI Director James Comey is deeply problematic. Career prosecutors didn’t want to touch it with a 10-foot pole but Comey is a political enemy of the president of the United States, so here we are. The barebones indictment is conclusory at best, alleging Comey lied to Congress in 2020, and is is so vague that it could apply to two alternate theories of the case.
The entire prosecution, led by Trump flunky Lindsey Halligan, who I’d refer to as deeply unserious if she didn’t wield so much undeserved power, has been objectively embarrassing for the government. And it’s gotten worse.
Yesterday in the case there was a hearing in front of Magistrate Judge William Fitzpatrick over potentially privileged materials collected in four different search warrants. And, he was *not* impressed. The defense raised concerns that the materials collected 5+ years ago were stale. As reported by ABC News:
Judge Fitzpatrick appeared to agree with those concerns during Wednesday’s hearing, as he repeatedly pressed Assistant U.S. Attorney Tyler Lemons over what materials the government had reviewed and why the disputes over privilege were not settled during the more than five years that the government had those communications in its possession
Fitzpatrick, citing what he described as “unusual” behavior by the Justice Department and the quickly approaching January trial date, ordered the government to hand over “all grand jury materials” related to its investigations of Comey by Thursday at 5 p.m. ET — an urgent deadline that reflected Fitzpatrick’s concern over the government’s conduct.
Judge Fitzpatrick slammed the government’s actions, saying it felt like an “indict first, investigate second” situation.
Well, to be fair to the DOJ, the judge’s statement isn’t quite accurate. You see the government *did* investigate — multiple times! — and those prosecutors decided there wasn’t enough evidence to indict but the president threw an inadvertently public hissy hit about *not* prosecuting his political enemies and the statute of limitations was about to run out, so we’re left with this blatant miscarriage of justice. But for simplicity’s sake, criticizing the prosecution as “indict first, investigate second” gets the job done.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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