Judge halts Justice Dept. effort to seek new Comey indictment

Former FBI Director James Comey is sworn in during a Senate hearing on Capitol Hill in Washington, June 8, 2017. A federal judge on Saturday night threw up a roadblock to the Justice Department’s plans to seek another indictment against Comey as early as this week. (Doug Mills/The New York Times)

By ALAN FEUER

A federal judge on Saturday night threw up a roadblock to the Justice Department’s plans to seek another indictment against former FBI Director James Comey as early as this upcoming week.

The decision by Judge Colleen Kollar-Kotelly of U.S. District Court in Washington temporarily blocked the department from using a crucial trove of evidence in its efforts to bring new charges against Comey. But it was unclear whether the ruling would permanently stop prosecutors from trying to reindict him.

Kollar-Kotelly’s four-page decision barred the government until at least next Friday from having access to much of the evidence it employed to secure its original indictment against Comey in late September. The move effectively prevents the Trump administration from using the same proof to seek new charges in the coming days.

The initial indictment of Comey charged him with lying to and obstructing Congress about testimony he gave five years ago denying that he had leaked information to the media concerning sensitive investigations that were conducted when he ran the FBI.

The bulk of the evidence came from communications between Comey and one of his close confidants, Daniel C. Richman, a former federal prosecutor who now teaches at Columbia University’s law school.

The Justice Department has claimed that Richman’s emails and text messages show that Comey lied about using him as a conduit to convey information to reporters about the sensitive investigations. But in an emergency filing to Kollar-Kotelly on Friday night, Richman argued that the Justice Department had obtained his files in violation of his constitutional rights, and that it should not be permitted to use them in any new attempt to reindict Comey.

Another judge who has worked on Comey’s case echoed Kollar-Kotelly’s findings last month, ruling that the way the government gained access to Richman’s messages likely violated the Constitution.

Kollar-Kotelly’s decision granting Richman’s request was only the latest setback in the prosecution of Comey, a longtime political foe of President Donald Trump’s. The prosecution has been plagued by a litany of problems almost from the moment that the U.S. attorney’s office in the Eastern District of Virginia first secured an indictment against the former FBI chief in late September.

The case is now technically dead after a separate judicial ruling determined that Trump’s handpicked choice to run the office, Lindsey Halligan, had been put into her job illegally. The same ruling invalidated a second case Halligan had filed against another one of Trump’s political opponents, Letitia James, New York’s attorney general.

A Virginia federal grand jury failed Thursday to return a new indictment against James, in yet another blow to Trump’s attempts to seek retribution against his perceived enemies.

Despite its mounting losses, the Justice Department has signaled that it is still considering returning to a grand jury in the Eastern District of Virginia as early as this upcoming week to seek a new indictment of Comey.

But Kollar-Kotelly’s ruling could give pause to any such decision. She determined that Richman was likely to succeed in his claims that the Justice Department violated his Fourth Amendment rights against unreasonable searches when prosecutors used his communications with Comey to bring the initial indictment.

The emails and texts messages that prosecutors used to secure that indictment were originally obtained in 2019 and 2020, when investigators in Washington were conducting a different inquiry into whether Comey had leaked information to the media through Richman about Hillary Clinton’s use of a private email server.

In his emergency request to Kollar-Kotelly, Richman claimed that the prosecutors in the first investigation had scrutinized more of his messages than the original search warrants permitted, then failed to destroy the evidence after the inquiry ended without charges.

More important, Richman claimed that when prosecutors in Virginia renewed the investigation into Comey just two months ago, they failed to obtain search warrants to look at the messages again — a move that Kollar-Kotelly suggested was in violation of basic constitutional protections.

In her order, the judge told the Justice Department that it was not allowed to view Richman’s messages or disclose them in any way without first seeking her permission.

That proscription would almost certainly bar prosecutors from using the information to make a new presentation to a grand jury in an effort to seek a second indictment of Comey.

Kollar-Kotelly instructed the Justice Department to certify that it would follow her order by Monday at noon. She also told the government to file its opposition to Richman’s request by Tuesday morning.