Dem
47
GOP
53
When one is a prosecutor for the United States Department of Justice—a department that has charged a former FBI Director, who also happens to be a target of the sitting U.S. President, with making false statements to Congress—it is generally a good idea to do one's homework before appearing in court at the defendant's arraignment. It's also a good idea to understand the term "rocket docket" and know whether or not the judge assigned to the case has one. Unfortunately, the two assistant U.S. attorneys from North Carolina who drew the short straw(s) after the entire office in the Eastern District of Virginia said "thanks, but no thanks" did neither of those. They were clearly caught off guard when Judge of the United States District Court for the Eastern District of Virginia Michael S. Nachmanoff (Biden appointee) set the trial date for January 5 and ordered discovery.
According to Ben Wittes at Lawfare, the prosecutors—Gabriel Diaz and Nathaniel Tyler Lemons—told the judge that they were "only just starting to get their hands around" the case and asked for more time to sort things out, including the documents they may need to produce. As Wittes points out, these are things that should be sorted out before the case is brought. The judge was incredulous and irritated—after sitting on this case for 5 years, the Trump-anointed Lindsey Halligan brings an indictment within a few days of being installed and now the prosecutors have the temerity to ask for more time to get their "hands" around it? For his part, Comey waived his right to a speedy trial, though the court was prepared to give him a December trial date. If he didn't need to avail himself of extensive discovery and file multiple motions to dismiss, Comey would have opted for an earlier trial date, no doubt sensing the disarray this department is in. Indeed, in another case, the DoJ had to drop charges against a defendant accused of assaulting an ICE agent after he invoked his right to a speedy trial and the lawyers assigned were unprepared to bring the case to trial that quickly. It is absolute amateur hour with The Pam and Lindsey Show.
Nachmanoff also set a briefing schedule for the motions to dismiss that Comey intends to bring and also ruled that a different federal judge will hear the motion to dismiss based on Halligan's improper appointment. That judge has yet to be assigned. The first round of motions for selective and vindictive prosecution and for the unlawful appointment is due on October 20, with the government's response due on November 3 and the defendant's reply due on November 10. The hearing date is November 19. The judge will have to rule quickly with a January 5 trial date looming. Pat Fitzgerald, Comey's attorney, also plans to bring a second round of motions to dismiss, including ones based on "outrageous government conduct" and a "literal truth defense." Those motions, if filed, are due on October 30 with a hearing date of December 9.
Fitzgerald then argued for extensive discovery and pointed out that the indictment does not specify the false statement that Comey is alleged to have made. It references a single quote: "authorized someone else at the FBI to be an anonymous source in news reports." But Comey did not make such a statement at the congressional hearing in question. Fitzgerald also said that the DoJ has not identified Person 1 or 3, and has not produced a single piece of paper in discovery. The defense team is in the dark about the nature of the charges. The media has speculated that it relates to questioning by Sen. Ted Cruz (R-TX) but that's all it is—speculation. The defendant has a right to know what he supposedly did wrong. On Monday, the judge denied prosecutors' motion for a protective order to prevent Comey from getting certain information related to his case, or from calling certain witnesses, and ordered that all discovery must be produced forthwith.
Finally, the prosecutors are arguing that there is a "significant amount" of classified material related to the case that has to be dealt with, and suggested that could slow things down. But the judge was unimpressed and said that would not delay the trial. What is clear is that, similar to Donald Trump's tactics when he was a defendant, he wants his underlings to drag this out as long as possible. These prosecutors, who, unlike Halligan, have experience trying criminal cases, must know that if this case ever goes to trial, they are toast. However unprepared they are, they seem to have gotten their hands around that. (L)