Judge Rebukes Justice Department, Orders Turnover of Grand Jury Materials in Comey Case
Magistrate Judge William Fitzpatrick sharply criticized the Justice Department on Monday, saying the agency engaged in a "disturbing pattern of profound investigative missteps" in the probe that produced an indictment of former FBI Director James Comey. In a 24-page opinion, Fitzpatrick directed prosecutors to produce all grand jury materials to Comey's defense team.
The judge said the problems included what he described as "fundamental misstatements of the law" by a prosecutor to the grand jury, the use of communications that may have been privileged, and unexplained irregularities in the grand jury transcript. Several portions of the prosecutor's remarks were redacted in the publicly released opinion, but Fitzpatrick said the comments appeared to ignore the long-standing rule that jurors must not draw a negative inference from a witness's decision not to testify.
"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," Fitzpatrick wrote.
Comey's lawyers sought the grand jury materials amid concerns that irregularities in the process may have tainted the indictment. They say the sole prosecutor who presented the case to the grand jury was Lindsey Halligan, a former White House aide with no prior prosecutorial experience who had been appointed only days earlier as interim U.S. attorney for the Eastern District of Virginia.
Fitzpatrick had initially ordered prosecutors to provide the materials but was later asked by the trial court to examine the grand jury proceedings more closely. After reviewing the transcripts and related materials himself, the magistrate said he was deeply troubled about the integrity of the process and said the conduct may amount to government misconduct resulting in prejudice to Mr. Comey.
The two-count indictment accuses Comey of lying to Congress in September 2020 when he indicated under questioning that he had not authorized FBI leaks to the media. Defense attorneys argue the Senate Judiciary Committee question was vague and that Comey's answer was truthful. While the line of questioning by Sen. Ted Cruz focused on whether Comey authorized his former deputy Andrew McCabe to speak with reporters, prosecutors have said the indictment centers on allegations that Comey allowed a close friend — Columbia Law professor Dan Richman — to serve as an anonymous source for journalists.
The magistrate's opinion is the strongest judicial critique so far of how the Justice Department handled the investigation, and it arrives amid broader concerns — raised by critics on both sides of the political aisle — that prosecutions of high-profile figures could be perceived as politically motivated. Both Comey and New York Attorney General Letitia James have filed motions arguing the prosecutions are vindictive and that Halligan's appointment was improper.
Halligan and spokesmen for the Eastern District of Virginia did not immediately respond to requests for comment.
