FILE – FBI Director James Comey testifies on Capitol Hill in Washington before the House Oversight Committee to explain his agency's recommendation to not prosecute Hillary Clinton on July 7, 2016. (AP Photo/J. Scott Applewhite, File)
In a final volley before a federal judge decides whether a magistrate was correct to order the DOJ to share "all" grand jury materials with James Comey's defense team, the ex-FBI director said the Trump administration's evasiveness in court this week on a key issue should be taken as "confirmation" that interim U.S. Attorney Lindsey Halligan pursued charges she knew career prosecutors believed weren't airtight and sold the grand jury a bill of goods anyway to punish the president's perceived enemy.
The reply from Comey's lawyers highlighted an "extremely troubling" moment in court on Wednesday, during a hearing before U.S. District Judge Michael Nachmanoff, where the DOJ noticeably wouldn't directly say whether a certain "declination memo" — one explaining why other prosecutors preceding the Halligan era in the Eastern District of Virginia didn't believe the false statement and obstruction evidence against Comey was sufficient — existed.
According to Politico's account, the judge asked prosecutor Tyler Lemons about the memo and he revealed that Deputy Attorney General Todd Blanche's office had advised him not to talk about whether such a memo existed, despite reports of at least three such memoranda.
Under questioning, Lemons reportedly said, "I am aware of written correspondence debating whether charges should be brought," but he declined to get into it any deeper since such a memo would be privileged DOJ "work product" Comey isn't entitled to receive.
On the other hand, Comey's lawyers believe a declination memo is exculpatory evidence favorable to the defense that would tend to show there may be "quintessential proof of" Halligan's "misconduct," wholly justifying U.S. Magistrate Judge William Fitzpatrick's Monday order for the DOJ to hand over grand jury materials so the defense can see exactly what Halligan said.
In a footnote, the defense needled the prosecution for its evasiveness on the memo issue, calling it stonewalling that speaks for itself.
"The government's refusal to answer basic questions about the existence of this declination memorandum and decision to hide behind a flimsy claim of privilege to stonewall the Court's inquiries, should be taken as confirmation that such a memorandum exists," the footnote said.
According to the defense, if there is proof that Halligan was "advised by career prosecutors in that declination memorandum that 'seeking the charges would violate DOJ policy, raise serious ethics issues, and risk being rejected by the grand jury,'" then this opens the door to dismissal on its own.
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"Mr. Comey is entitled to learn what Ms. Halligan said in order to try to convince a grand jury that Mr. Comey remembered a communication for which there is no evidence he received," the filing continued, alluding to a counterintelligence operational lead (CIOL) from 2016 warning the "Clinton campaign was going to create a scandal regarding Trump and Russia[,]" according to Sen. Lindsey Graham's phrasing during 2020 questioning of Comey.
The grand jury, the defense noted, ultimately rejected a criminal charge related to Comey's answer that the CIOL didn't "ring any bells," so if Halligan "presented misleading evidence on a charge—and/or omitted material exculpatory facts on the same point—after being clearly told that there was insufficient evidence on that point, that would be quintessential proof of misconduct before the grand jury justifying dismissal[.]"
The defense added that there is no evidence Comey ever saw the CIOL the DOJ tried to indict him for lying about:
There is no electronic trail showing that Mr. Comey received the CIOL at issue. There is no paper trail showing that he received it. And there is no witness who says that Mr. Comey either received it or discussed it with him. Full stop.
This total lack of evidence is extremely troubling in light of credible press reporting that not only does a declination memorandum exist in this case, but it made clear that with respect to the CIOL in particular, a prior investigation found that Mr. Comey's statement could not support a false-statement charge because there was insufficient evidence Mr. Comey had ever seen the CIOL.
What's more, Comey's lawyers asked Nachmanoff to review the materials himself, just like the magistrate did, and draw conclusions about whether some combination of a potentially "tainted" FBI agent witness "exposed" to attorney-client privileged information and Halligan "misstatements of law" before the grand jury could doom the case.
"The Court here should similarly review the materials as part of the government's appeal and dismiss the government's deflection," the filing said, before briefly summarizing what discovery has indicated so far. "[T]here appears to be numerous pieces of highly exculpatory evidence that—given its tendency to undermine the existence of probable cause—Ms. Halligan likely did not present to the grand jury, and without which the grand jury would have been left with a deeply misleading picture of the case."
In a response Wednesday, the DOJ resisted disclosure by saying that even if Halligan made "misstatements of law" to the grand jury, that should not override grand jury secrecy and should not lead to the dismissal of the case.
"The magistrate judge also found that two alleged misstatements of the law by the U.S. Attorney to the grand jury provided another basis for ordering disclosure of the grand jury material," the DOJ said. "That, too, was contrary to law, since those alleged misstatements — even if they were incorrect statements of the law — are no basis to dismiss the indictment."
Asserting that Comey did not carry his "burden," the DOJ argued that Fitzpatrick misread the grand jury transcript and drew "incorrect legal conclusions" based on "factual assumptions" about Halligan's activities.
"The U.S. Attorney did not misstate the law, the grand jury was not misled, and the transcript shows a routine, regular presentation of the indictment," the government insisted.
The Comey reply also comes not long after Halligan created a new firestorm of her own, by misleadingly slamming the judge in comments to the New York Post.
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