Dem
47
GOP
53
There's an old saying in the legal profession, one that we have mentioned many times: If the law is on your side, pound the law; if the facts are on your side, pound the facts; if neither is on your side, pound the table. As a general rule, the Department of Justice, which has the luxury of deciding whom to charge with a crime, doesn't have to do a lot of table pounding. However, when charges are brought by a political stooge to satisfy the whims of a vengeful president, the table pounding starts early. We have a couple of examples along those lines today, both of which backfired.
First up, prosecutors filed a motion on Sunday for an expedited ruling on a "filter protocol" motion that they claim will support a motion to disqualify James Comey's lawyer, Patrick Fitzgerald, based on an allegation that he helped Comey leak classified information. They claim that creates a conflict of interest with Fitzgerald representing Comey now. If that sounds far-fetched to you, you're not alone. The technical term here is "red herring." Why? Well, let's unpack this a bit. Neither Comey nor Fitzgerald has been charged with leaking classified information. Back in 2019, Comey admitted that some memos were shared with Daniel Richman, who in turn shared non-classified information with the media. Some memos were also shared with Fitzgerald (who did not pass anything on to anyone) in his role as Comey's attorney, but they were unclassified at the time and then later labeled as classified at the lowest level. In a blistering response, Fitzgerald reminded the prosecutors and the court that once he was informed that some of the material had been labeled classified after-the-fact, he immediately returned them, a claim the Inspector General confirmed in a report.
The prosecution's request for a filter team is a way to get access to privileged communications between Comey and his attorney. The filter team is supposed to be walled off from the prosecutors, but this current iteration of the DoJ has lost all benefit of the doubt and, indeed, the defense argued that a member of the team "may already have been tainted." On Tuesday, Judge Michael S. Nachmanoff denied prosecutors' request for an expedited ruling on a filter team, noting that they should have asked for that when they filed their motion on October 13. According to the judge, the DoJ "has had the materials at issue in its possession for several years and apparently failed to seek any guidance with respect to a filter protocol at any time before October 13, 2025." Moreover, "the government failed to raise any concern with lead counsel's representation until the filing of the government's motion to expedite on October 19, 2025."
As a result of this, the defense has until October 27 to respond to the prosecution's motion. So far, the DoJ is 0-2 in Nachmanoff's court and these types of games serve to signal the lack of confidence in their case. Meanwhile, as expected, Comey filed two motions to dismiss the charges against him on Monday. One is based on selective and vindictive prosecution and the other is based on "Acting U.S. Attorney" Lindsey Halligan's not having legal authority to bring the charges. The second motion will be heard by a judge (as yet unnamed) outside the Eastern District of Virginia, to avoid a conflict with the judges who voted to keep the former U.S. Attorney, Erik Siebert, in the role. Trump fired Siebert, his own appointee, when Siebert balked at Trump's demand to bring charges against James Comey and New York Attorney General Letitia James.
Meanwhile, Lindsey Halligan continues to demonstrate her inexperience, incompetence and sheer stupidity. It all started when Anna Bower, of Lawfare, linked to a report in The New York Times that the home at the center of the indictment against James is used by her grand-niece, Nakia Thompson, who doesn't pay rent. Thompson testified to a Norfolk grand jury that she has lived there since 2020, when James purchased the property, and that James visits frequently for extended periods. (Note that witnesses are free to discuss their grand jury testimony.) And yet it was an Alexandria grand jury who handed down the indictment that claims the property is used as a rental property—Thompson did not testify before that grand jury. This obviously raises some serious questions about what the Alexandria grand jury was told and whether that information was truthful. Lying to a grand jury is a crime.
Halligan didn't like the implication that she had lied to a grand jury. She was unhappy with some reporting by Anna Bower at Lawfare, it would seem, and sent Bower dozens of texts that contained some... pretty interesting information. Halligan tried to defend her behavior by claiming that the Times is "disclosing grand jury info—which is also not a full representation of what happened." She went on to say, "You're assuming exculpatory evidence without knowing what you're talking about." That is awfully close to violating grand jury secrecy rules. When Halligan realized what she had done, she wrote "I can't tell you grand jury stuff" and then she tried to claim it was all "off the record." But that's not how this works, and Bower made their exchanges public (click on the link above).
The bottom line is that we're only a month into Halligan's tenure and she is already on really thin ice. Maybe she's hoping the court will disqualify her so she has an excuse to go back to Florida and the insurance business. And Comey, for his part, has to be feeling very good about his chances. If we may adapt the old aphorism, this clown show looks like it couldn't convict a ham sandwich in a beth din. (L)