Judge: Even If Trump’s DOJ Goes After Comey Again, It Won’t Have Access To Evidence It Illegally Obtained

from the good-luck,-fuckwits dept

Lindsey Halligan — a former personal lawyer for Trump who specialized in insurance law — was suddenly propelled to the top of the DOJ heap after better, more qualified lawyers refused to engage in Trump’s revenge prosecutions.

The exit of prosecutors unwilling to engage in politically motivated, completely mismanaged prosecutions of Trump enemies like former FBI director James Comey and New York AG Letitia James created a void. Trump, as he always does, filled it with someone he liked, rather than someone who could actually do the job.

This created a lot of problems. Lindey Halligan’s inexperience nearly brought these proceedings to a complete halt during her initial appearance as the newly-not-really-even-appointed US Attorney. A couple of months later, this inexperience is no longer the main thing holding her back. It’s the law of the land.

Presidential appointments — even those made by MAGA god-king Donald Trump — are expected to follow the rules. Halligan’s didn’t. Not only was she never officially elevated from appointee to US Attorney, the amount of time that had passed between the exit of qualified prosecutors and Trump’s hasty insertion of his insurance lawyer took this decision out of Trump’s hands. It was up to the courts to assign a prosecutor. It was no longer a matter of choice for DJT.

A recent order from the court handling both vindictive prosecutions makes that extremely clear. If Halligan hasn’t been legally appointed, she cannot possibly engage in grand jury proceedings, much less try to convert these into federal prosecutions. The cases against Comey and James have been dismissed, albeit without prejudice. But the clock continues to run on those cases and the administration doesn’t seem to have a Plan B to fall back on.

This means quite a bit for Comey. The (bullshit) charges he’s been hit with will soon expire under the statute of limitations. But his defense team isn’t going to sit around and wait for the statute bell to toll. His reps are also attacking the underlying evidence, which was also highlighted by the same judge who declared Halligan wasn’t legally appointed to her position.

Here’s some of what was detailed in a strong judicial rebuke of the administration that was mostly overshadowed by its rejection of Halligan as a legal representative of the Trump government:

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.

[…]

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. 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.

First, the government obtained and accessed privileged communications between James Comey and his legal reps. Its rummaging of the contents of seized devices expanded to include evidence of criminal acts other than those Comey was (very eventually) charged with. Finally, the government sat on this “evidence,” choosing only to look at it again four years later, after Trump returned to the Oval Office.

There are a handful of constitutional violations in here, which would be problematic enough without the additional circumstantial evidence that strongly suggests the only reason the FBI would look at this evidence four years after first obtaining it was to satisfy Trump’s demands that James Comey be punished for… something.

This transparent attempt to manufacture charges from evidence seemingly illegally obtained/accessed has led to another loss for the Trump DOJ currently being mismanaged by Pam Bondi and a bunch of lawyers best known for serving Trump’s personal legal interests during his all-too-brief return to the private sector.

A recent order [PDF] from Judge Colleen Kollar-Kotelly (known previously for her work with the FISA court) says Trump’s DOJ can’t use this illegally-derived evidence to engage in another attempt at saddling James Comey with a federal indictment. (h/t Josh Gerstein at Bluesky)

First, the judge points out all the things the DOJ hasn’t done:

First, although the Court has been in communication with attorneys from the U.S. Attorney’s Office for the District of Columbia, the U.S. Attorney’s Office for the District of Columbia has not yet entered an appearance to make representations on behalf of the Government, and counsel for the Government has not yet been identified.

Second, the Government has not yet indicated who has custody of the material at issue, and neither the Petitioner nor the Court can determine the identity of the custodian until the Government appears in this case. Given that the custody and control of this material is the central issue in this matter, uncertainty about its whereabouts weighs in favor of acting promptly to preserve the status quo.

And this is how this all works out for Comey’s lawyer, Daniel Richman, whose computer was seized, its contents imaged by the DOJ, and apparently searched whenever the DOJ felt like doing so:

The Court concludes that Petitioner Richman is likely to succeed on the merits of his claim that the Government has violated his Fourth Amendment right against unreasonable searches and seizures by retaining a complete copy of all files on his personal computer (an “image” of the computer) and searching that image without a warrant. The Court further concludes that Petitioner Richman is also likely to succeed in showing that, because of those violations, he is entitled to the return of the image under Federal Rule of Criminal Procedure 41(g).

The word “return” means something in this particular context. While it’s impossible to prevent anyone from making a copy of anything digital they’ve been ordered to “return,” the order makes it clear that even if the government retains its image (rather than destroying it so it’s inaccessible by the government), it will not be allowed to use anything from that image file as evidence in future prosecution efforts against Comey.

If the government is smart, it will perform the “return” (which means destroying its copy of the contents of Richman’s computer). But this government isn’t smart. It’s a confederacy of brutish dunces. And there’s little doubt it’s doing everything it can to find some way to make federal charges against Comey stick long enough to convert its Pyrrhic victory into a viral X post. But for now, the law of the land has control. With any luck, the law of land will protect us from the vengeance of an elected government that has no respect for the people it’s supposed to be serving.

Filed Under: 4th amendment, colleen kollar-kotelly, doj, fbi, james comey, lindsey halligan, privileged communications, prosecutorial misconduct