Judge Gives Comey Early Win. What Does It Mean for the Rest of the Case?

A federal magistrate judge on Monday criticized federal prosecutors when ordering that they turn over grand jury evidence to the defense team representing indicted former FBI Director James Comey, who faces charges of perjury and obstruction of a congressional investigation.

Magistrate Judge William Fitzpatrick said interim U.S. Attorney Lindsey Halligan made two statements to grand jurors that could be “fundamental misstatements of the law,” The Hill reported.

“The Court recognizes that the relief sought by the defense is rarely granted,” Fitzpatrick said in the opinion. “However, 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.”

Magistrate judges, such as Fitzpatrick, are not presidential appointees but are appointed by a panel of federal district judges.

John Malcolm, director of The Heritage Foundation’s legal center, explained that it is unusual for a judge to order the release of grand jury transcripts, even to the defense, as Fitzpatrick acknowledged. However, Malcolm told The Daily Signal that “it is not unheard of.”

“After all, [President Donald] Trump’s [Justice Department] recently sought the release of the grand jury transcripts related to the [Jeffrey] Epstein indictment because they believed that the public interest outweighed the need for grand jury secrecy,” Malcolm said. “Here, the judge is obviously concerned with what documents the grand jury saw and what instructions they were given about the applicable state of the law.”

It’s too early to say if this suggests the judge would dismiss the grand jury indictment, the legal analyst said. 

“The defense team has made enough of a showing that he is concerned about what happened, and thinks that the defense attorneys should be afforded the opportunity to see the material and make whatever arguments they want to make,” Malcolm added. 

A defendant’s legal team is entitled to have the prosecution’s evidence in a case to mount a defense. However, defense lawyers generally do not receive grand jury transcripts of non-testifying witnesses or agents who provide summary evidence. Nor do they get documents that were received by the grand jury that would not be exculpatory and are not introduced at trial by the government.

The judge said Halligan seemed to suggest to the grand jury that Comey would not have a Fifth Amendment right to decline to testify at his criminal trial. Further, he said she suggested to the grand jurors that they did not have to rely on the record before them and that the government had more evidence at trial. 

A Justice Department spokesperson declined to comment for the story.

The Eastern District of Virginia is in a mostly Democrat-leaning area, with a grand jury and jury pool that might not be eager to indict someone aligned with Democrats. 

Comey faces charges for telling Sen. Ted Cruz, R-Texas, in testimony before the Senate Judiciary Committee in 2020 that he never authorized leaks. Prosecutors say this was a lie because Comey authorized Columbia University law professor Daniel Richman to talk to reporters.

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