The judge overseeing the forthcoming criminal trial of former FBI Director James Comey intervened Monday evening to allow the Justice Department more time to argue against the release of grand jury records to the defendant.
The decision by U.S. District Judge Michael Nachmanoff, an appointee of former President Joe Biden, came hours after U.S. Magistrate Judge William Fitzpatrick made the rare decision to order the DOJ to turn over audio and records from the hours leading up to the grand jury’s Sept. 25 indictment of Comey on two counts of obstruction and false statements stemming from his 2020 testimony to Congress.
In an emergency motion filed Monday, federal prosecutors urged Nachmanoff to pause the handover, writing that “the Magistrate Judge’s new order is contrary to law and the government should be allowed to object to the order.” Prosecutors further argued that Fitzpatrick “may have misinterpreted some facts he found when issuing the latest order to release the grand jury materials to the defendant.”
Nachmanoff did not stay the order but gave the DOJ until 5 p.m. Wednesday to lodge its full objections. Comey’s defense team has until 5 p.m. Friday to respond, before he decides whether to uphold or adjust Fitzpatrick’s decision.
A highly unusual step
Requests for grand jury material of this scope are almost never granted, legal experts say, because grand jury secrecy is treated as nearly absolute in federal court. Judges will only pierce that wall in extraordinary circumstances — typically, when a defendant can make a fact-specific showing that something may have gone seriously wrong behind closed doors. That requires far more than a routine discovery dispute. In practice, a judge must conclude there were potentially severe breaches of attorney-client privilege, improper presentations of evidence, or gaps in the grand jury record significant enough to justify a post hoc but pretrial examination. Fitzpatrick’s order indicated he believed the record met that exceptionally high threshold.
As a magistrate judge, Fitzpatrick is not a presidential appointee but was selected in 2022 by the federal district judges of the Eastern District of Virginia, which, at the time, held a Democratic-appointed majority. The court’s bench then included five judges appointed by former Presidents Bill Clinton, Barack Obama, and Biden, alongside four Trump and Bush appointees. Magistrate judges are chosen through an internal vote of the district’s lifetime-tenured judges, who rely on a merit selection panel but retain sole authority over the final pick. Magistrate judges typically handle procedural matters, such as setting bail, and do not answer the larger legal questions left to congressionally appointed federal judges.
Fitzpatrick’s ruling has already drawn sharp criticism from some conservative legal commentators. Mike Davis, founder of the Article III Project and a close ally of President Donald Trump, wrote on X that the magistrate judge was “going out of his way” to help Comey’s defense.
“Magistrate Judge William Fitzpatrick — appointed by partisan DC-area Democrat judges in 2022 — is going out of his way to carry water for James Comey,” Davis wrote. “Fitzpatrick — through his highly irregular ruling — is grasping at straws to make his findings that Lindsey Halligan (somehow) did something wrong. She did not. Fitzpatrick is even pretending there is missing evidence.”
Comey’s temporary victory trickles into Letitia James case
The fallout from Fitzpatrick’s findings is already spreading to other prosecutions in the Eastern District of Virginia.
In Norfolk, where New York Attorney General Letitia James was indicted in October on federal bank and mortgage fraud charges, her defense team filed a motion Monday urging U.S. District Judge Jamar Walker, a Biden appointee, to conduct an in-camera review of all grand jury transcripts and audio recordings in her case.
James’s attorneys said the request was necessary “in light of the apparent misstatements of the law” identified by Fitzpatrick in the Comey proceedings, writing, “As in the case of James Comey, this Court should review the entirety of the grand jury transcripts and the audio recording of proceedings … to assess whether any similar misstatements of the law occurred that could compromise the integrity of the grand jury process in this case.”
Fitzpatrick’s rebuke of investigators and prosecutors
In his 24-page order earlier Monday, Fitzpatrick wrote that the record revealed “a disturbing pattern of profound investigative missteps” that could justify dismissing parts of the indictment — a remedy scarcely seen in federal criminal cases.
He criticized the government’s handling of attorney-client privilege during the FBI’s “Arctic Haze” leak investigation, pointing to four search warrants executed in 2019 and 2020 targeting Comey’s longtime friend and attorney, Daniel Richman. Agents, at the time, seized data from Richman’s iPhone, iPad, iCloud account, and hard drive.
Although investigators allowed Columbia University, Richman, and Richman’s attorney to segregate privileged materials, Fitzpatrick said they “never engaged Mr. Comey in this process even though it knew that Mr. Richman represented Mr. Comey as his attorney as of May 9, 2017.” Three of the warrants authorized searches through May 30, 2017, nearly three weeks after that attorney-client relationship began.
Fitzpatrick noted that while there is no evidence privileged communications were directly shown to grand jurors, “the materials seized from the Richman Warrants were the cornerstone of the government’s grand jury presentation.” Only a single FBI agent testified, despite having been exposed to “a limited overview” of privileged Comey-Richman communications.
“The government’s decision to allow an agent who was exposed to potentially privileged information to testify before a grand jury is highly irregular and a radical departure from past DOJ practice,” he wrote.
Sharp criticism of Lindsey Halligan
The magistrate judge also took aim at interim U.S. Attorney Lindsey Halligan for what he called “fundamental misstatements of the law” during her presentation to grand jurors.
One redacted statement by Halligan appeared to imply that Comey’s decision not to testify could be taken as a sign of guilt, a suggestion Fitzpatrick said violated “a foundational rule of law.” Another comment, also redacted, “clearly suggested to the grand jury that they did not have to rely only on the record before them to determine probable cause but could be assured the government had more evidence … that would be presented at trial.”
“The prosecutor’s statement … may have reasonably set an expectation in the minds of the grand jurors that rather than the government bear the burden to prove Mr. Comey’s guilt beyond a reasonable doubt at trial, the burden shifts to Mr. Comey to explain away the government’s evidence,” Fitzpatrick wrote.
What comes next
Comey, 64, was indicted Sept. 25 on charges of lying to Congress and obstruction of justice related to his September 2020 testimony before the Senate Judiciary Committee. His trial is scheduled to begin Jan. 5, 2026, though any delays, including the possibility of an indictment being dismissed and an ensuing appeals process, could upend that schedule.
His lawyers are also challenging the case on separate grounds, including whether Halligan was lawfully appointed and whether the prosecution itself is vindictive. A hearing over this motion is slated for Wednesday morning in federal court.
JUDGE ORDERS DOJ TO TURN OVER GRAND JURY MATERIALS TO COMEY, CITING POSSIBLE ‘MISSTEPS’
Both the Comey and James cases are awaiting a decision by an outside judge from South Carolina, who weighed arguments last week over both defense teams’ objectives to see Halligan removed as the lead prosecutor in northern Virginia. U.S. District Judge Cameron Currie, a Clinton appointee, said she would rule on the motion to remove Halligan before Thanksgiving.
Defendants argue Halligan’s removal must coincide with the cases being dismissed with prejudice, though the judge could narrow the scope of the request to pertain only to her qualifications to lead the U.S. attorney’s office.