Citing "Profound" Gov't Misconduct, Federal Judge Opens Grand Jury Files to Comey's Defense Team

Rulings from federal judges that go against the Trump administration are a dime a dozen these days, so we’re all likely a little numb at this point. But what makes this one interesting is the level and nature of prosecutorial incompetence and apparent misconduct described in Magistrate Judge William Fitzpatrick’s ruling. This is something that could never have happened in the Department of Justice pre-2025. It’s a little “in the weeds,” but a deeper look is warranted. Here’s the full ruling and here are the key words to remember:

“A disturbing pattern of profound investigative missteps”

“Whether purposeful, reckless, or negligent.”

That last clause — purposeful, reckless, or negligent — is a judicial throat-clearing that says: this might not be incompetence; it might be bad faith.

Let’s dive in.

1. What Fitzpatrick Actually Did — in One Sentence

Judge Fitzpatrick looked at how Trump’s hand-picked prosecutor Lindsey Halligan, who had never tried a case before being appointed US Attorney, took the Comey case to the grand jury and concluded there is a “disturbing pattern” of serious screw-ups that may amount to government misconduct. Because of that, he took an almost unheard-of step: he ordered the government to turn over the secret grand jury transcripts and materials to Comey’s defense team so they can see whether and to what degree the prosecution in essence cheated the system and the grand jury to get an indictment that was questionable on the face of it. In other words—how far did Trump’s DOJ bend the law to get an indictment against one of Trump’s political enemies?

2. Grand Juries & Why This Is So Extreme

Part of the problem in explaining this is that there are underlying concepts that are important to keep in mind from the start:

1. Grand juries are secret by design.

They sit in a closed room and hear only the government’s side, to decide whether there’s “probable cause” to charge someone. The secrecy protects witnesses, ongoing investigations, and reputations of people who aren’t indicted. The secrecy is a very big deal and it takes a lot to overcome the presumption that grand jury materials should remain secret.

2. Defendants almost never see the grand jury transcripts.

Because of the foregoing, Courts guard grand jury secrecy so tightly that, in most cases, defense lawyers never see exactly what prosecutors said behind those closed doors. The “I could indict a ham sandwich”rule applies — meaning the grand jury format is is so pro-government that defense lawyers frequently lament that it would be possible to indict anyone or anything under this pro-prosecution system.

3. To pierce that secrecy, the defense has to clear a very high bar.

You don’t get transcripts just because you’re curious or suspicious. You have to show specific, fact-based reasons to believe something went seriously wrong in the grand jury — enough that the indictment itself might need to be thrown out.

Fitzpatrick’s ruling means he thinks Comey’s team met that high bar.

3. How We Got Here: The “Arctic Haze” Leak Case Comes Back from the Dead

The road to this mess starts years before Comey was indicted.

• Back in 2019–2020, there was an internal FBI leak investigation called “Arctic Haze.” It focused on Comey’s friend and later lawyer Daniel Richman, and whether classified info was improperly shared with journalists.

• Search warrants were executed, pulling in a lot of Richman’s communications — including, critically, potential attorney-client communications with Comey.

According to Fitzpatrick’s opinion (as summarized in multiple reports), he finds that in Arctic Haze:

• The government over-seized material, going beyond what the warrants authorized — a basic Fourth Amendment problem.

• They also invaded attorney-client privilege by scooping up privileged communications between Comey and his lawyer (Richman) and not handling them properly.

That old investigation never produced an indictment, and the warrants were never tested in court — the kind of thing that should make any later use of that evidence especially careful and by-the-book.

Fast-forward to 2025:

• Trump forces out the prior U.S. Attorney who wouldn’t charge Comey, and installs Lindsey Halligan, a loyalist with no prior prosecutorial experience, to take over and get the case charged before the statute of limitations runs.

• With only 18 days left on the clock, the new team starts rummaging through the old Arctic Haze evidence to see what they can use against Comey.

This is where the train really starts to leave the tracks.

4. The Three Big Government Failures Fitzpatrick Found

Fitzpatrick’s opinion (and the reporting around it) makes clear he’s not talking about minor technicalities. He’s talking about systemic, consequential mistakes that go to the heart of fair process.

You can group them into three buckets:

Bucket 1: The Warrant Shortcut – “Indict First, Investigate Second”

When DOJ re-opened the Arctic Haze material to build a new case against Comey in 2025, it was essentially:

• A new target (Comey, not Richman)

• A new theory of prosecution

• A new set of alleged crimes

Under normal DOJ practice, that would mean: get a new warrant that clearly explains to a judge what you’re doing and why you’re using this old data for a new case.

Fitzpatrick says they didn’t bother.

Instead, with the limitations clock about to expire, they just dove into the old evidence:

• No updated warrant.

• No new judicial sign-off.

• No proper privilege protections in place at the outset.

Later, when an FBI agent realized there were likely attorney-client privileged communications in what they were using, he alerted an FBI lawyer and the case agent who would eventually testify to the grand jury. But DOJ waited:

• About 31 days from the start of reviewing the materials, and

• 18 days after the FBI lawyer was warned about the privilege problem

…before finally going to court to ask for a filter team to sort out privileged material. By then, the taint was already baked into the case.

Result: an FBI agent who had seen privileged material still went in and testified to the grand jury instead of recusing himself.

That is exactly the sort of thing that can taint a grand jury and set up a later motion to dismiss.

Bucket 2: The Privilege Problem — DOJ Contaminates Its Own Case

Attorney-client privilege is one of the most basic protections in criminal law. If the government:

1. Seizes privileged communications by over-searching, and

2. Lets people who saw those communications shape the case that’s presented to the grand jury

…you have a serious problem.

That is what Fitzpatrick believes may have happened here:

• Privileged Comey–Richman communications were swept up.

• An agent who had seen them helped build the case and then testified in the grand jury.

• DOJ dragged its feet on setting up a filter team, even after being warned.

Fitzpatrick’s bottom line: there is a reasonable basis to think privileged material influenced the grand jury, and that alone justifies giving the defense a full look at what happened behind closed doors.

Bucket 3: Halligan’s Misstatements of Law to the Grand Jury

If the warrant/privilege issues are bad, what Halligan did inside the grand jury room is worse.

From Fitzpatrick’s opinion and the summaries we have, there are two key areas where Halligan appears to have made fundamental misstatements of the law to the grand jurors.

1. Misstating the Fifth Amendment / burden of proof

   The judge suggests Halligan’s explanation of Comey’s rights and the government’s burden may have flipped the logic, leaving jurors with the impression that:

   • Comey needed to prove his own innocence, rather than

   • DOJ needing to prove his guilt beyond a reasonable doubt (even at the charging stage, you do not tell a grand jury that the defendant carries the burden).

   If a prosecutor misleads the grand jury about who bears the burden, that goes to the core fairness of the proceeding.

2. “Trust us, we have better evidence we’re not showing you”

   Fitzpatrick also flags a statement — partly redacted — where Halligan appears to have told the grand jurors they could rest easy because the government has more, and maybe better, evidence that it hasn’t presented, but could bring out at trial.

   That is flatly improper. The grand jury is supposed to decide based on the evidence in front of it, not on a prosecutor’s assurances about secret evidence somewhere else. Courts have criticized that kind of “trust us” argument for decades.

On top of that, Fitzpatrick notes irregularities in the transcript and indictment process:

• The transcript seems incomplete, or

• DOJ may be using an indictment the grand jury never actually reviewed in that form.

Put together, he describes this as a “disturbing pattern of profound investigative missteps” that threaten the integrity of the grand jury process itself.

5. So What Did Fitzpatrick Order, Exactly?

Here’s what his order does, in plain English:

1. He finds that Comey’s team cleared the very high bar to pierce grand jury secrecy. There’s enough evidence of possible government misconduct to justify extraordinary transparency.

2. He orders the government to turn over “all grand jury materials” related to Comey — transcripts, exhibits, and anything else that shows what happened in the room.

3. He explicitly flags that this could justify dismissing the indictment under the district court’s “supervisory powers” if the misconduct is confirmed and found to be prejudicial — exactly what Supreme Court precedent allows when grand jury abuse makes a fair trial impossible.

4. He sets a short deadline for DOJ to comply — which triggered immediate panic at Main Justice.

DOJ’s response was to run upstairs to Judge Nachmanoff and ask for an emergency stay, arguing Fitzpatrick misinterpreted some of the facts and that turning over the transcripts would do irreversible harm. Nachmanoff agreed to pause the order while:

• DOJ files its objections;

• Comey’s team responds; and

• Nachmanoff decides, on the papers, whether to affirm Fitzpatrick’s order or cut it back.

6. What Happens Next?

There are three tracks to watch:

1. Will Nachmanoff uphold Fitzpatrick’s order?

   • If he upholds it, Comey’s lawyers get a front-row view of everything Halligan and the agent told the grand jury — and that becomes Exhibit A in a later motion to dismiss the indictment.

   • If he narrows or reverses it, we’re back to fighting over secrecy — but Fitzpatrick’s written opinion and the reporting have already revealed a lot.

2. The motion to dismiss for misconduct.

   Fitzpatrick has essentially written the roadmap: if the defense can show that Halligan’s misstatements and the tainted evidence prejudiced Comey’s rights and the fairness of the process, the district court can dismiss the indictment under its supervisory powers.

3. The separate challenge to Halligan’s appointment.

   In a parallel track, another judge is considering whether Halligan’s appointment itself was lawful — not just in the Comey case, but also in the prosecution of New York AG Letitia James. If that appointment is struck down, it could wipe out both sets of indictments in one stroke.

7. The Bigger Picture: What This Says About DOJ Under Trump 2.0

This isn’t just about James Comey.

It’s a case study in what happens when:

• A president publicly demands prosecutions of his political enemies;

• Career prosecutors who say “no” are removed;

• A politically loyal but inexperienced lawyer is dropped into a U.S. Attorney’s chair weeks before the statute of limitations runs; and

• The basic guardrails — warrants, privilege protections, accurate instructions to the grand jury — are treated as optional.

In a normal DOJ, this sort of conduct would trigger:

• Internal investigations by the Office of Professional Responsibility;

• Supervisory intervention from experienced line and supervisory prosecutors; and

• Likely professional consequences for the people who cut these corners.

Instead, we have a federal magistrate judge writing, in a published opinion, that the government’s conduct shows a “disturbing pattern” of missteps so serious that he’s willing to do something almost no judge ever does: open up the black box of the grand jury to the defense.

That should tell us two things:

1. The Comey prosecution is in real trouble.

   Between the privilege taint, the misstatements of law, the “trust us” argument, and the appointment challenge, this indictment is now hanging by multiple threads. It’s in genuine trouble and no one could reasonadly disagree with that.

2. The broader Trump project to weaponize DOJ is showing its seams.

   Even judges who are traditionally cautious about second-guessing prosecutors are now putting in writing that the government may have crossed the line into misconduct — not just aggressive charging, but corrupt process.

If there’s a silver lining, it’s that the system still has some immune response left. Judges like Fitzpatrick (and potentially Nachmanoff and others) are signaling they won’t put judicial signatures on a politicized sham, no matter who the defendant is. But that immune response may or may not be sufficient to block this sort of thing.

But the fact that we’re here at all — with a former FBI Director relying on a magistrate judge to rescue him from a politicized, botched prosecution — is its own warning flare about how far the Justice Department has been pushed from what it was before 2025.

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If you’re still here, thanks for this trip deep down a DOJ rabbit hole. It’s saddening and well, almost sickening, to see the DOJ redueced to this. Yes, it’s frightening for the rule of law in this country, and it makes all of us aware that a targeted prosecution against a political enemy based on a fake premise and buttressed by cheating by the government with the grand jury is all it takes to put someone in the same position Comey now finds himself in. But it’s also just sad to see a proud and respectable institution reduced to rubble before our eyes. In the famous words of someone: “SAD!”.

On we go. Thanks for taking this “sad” journey with me today. As always I appreciate your support and I must, reluctantly but necessarily, make the pitch for paid subscriptions. I’m going to keep sharing the stats so you can track. We are at 480 paid out of 18,000++, about 2.8%. Substack standards say 5% is where we should be. I’m not going to use paywall to get there - just gently remind that your paid support let’s me treat this like a job and not a hobby. We have made a lot of progress so far and I thank you for that. A very big thank you to all subscribers, paid and free, you are the best.