The Situation: Malevolence, Incompetence, and the Strange Case of Lindsey Halligan

The Situation on Wednesday commented on President Trump’s falling approval numbers.

Yesterday, a magistrate judge in the Eastern District of Virginia issued a startling 24-page opinion—or, rather, an opinion that should be startling to a reader had not already inured to the combination of misconduct and incompetence that is the stock and trade of the president’s hand-picked prosecutor for his political foes. 

The decision by Magistrate Judge William Fitzpatrick—whom you are not to confuse with James Comey’s defense attorney, Patrick Fitzgerald—ordered the release of the grand jury transcripts in the Comey case to the Comey defense team.

In and of itself, this outcome is not a surprise. Judge Fitzpatrick had tried to do this once before, during a hearing on Nov. 5—only to have the government appeal and the district court kick the matter back to him “to analyze whether there are particularized and factually based grounds for disclosure.”

The government then asked, foolishly in retrospect, “that the Court review the transcript of grand jury testimony in camera to confirm the baselessness of the defendant’s claim that privileged information may have been shared with the grand jury.” It’s not exactly a shock that, after doing this review, Judge Fitzpatrick found that he agrees with himself that the material should, as he ordered before, be disclosed to the defense.

What is a shock is the diversity and range of his “particularized and factually based grounds” for doing so.

Judge Fitzpatrick makes a series of factual findings that amount to this claim: “[T]he government’s actions in this case—whether purposeful, reckless, or negligent—raise genuine issues of misconduct, are inextricably linked to the government’s grand jury presentation, and deserve to be fully explored by the defense.”

What are these findings? I urge people to read the opinion itself. It’s quite a yarn. But for those who want a summary, broadly speaking, Judge Fitzpatrick finds the following:

• A series of search warrants in 2019 and 2020 directed at Columbia University law professor Daniel Richman, who was one of Comey’s lawyers, did nothing to protect attorney-client privileged communications between Comey and Richman: “[W]hen the government obtained the first Richman Warrant in 2019, it was clearly foreseeable that Mr. Richman’s devices contained potentially privileged communications with numerous third parties, including Mr. Comey. Nevertheless, in 2019 and 2020, the government made a conscious decision to exclude Mr. Comey from the filter process, even though Mr. Comey, as the client, is the privilege holder, not Mr. Richman.” Oh.
• What’s more, the search may well have been constitutionally defective: “Of equal concern is whether the government complied with a fundamental requirement of the Fourth Amendment and with the plain language of the warrants that it may seize only those materials specifically authorized by the Court.” Oh.
• Having arguably collected materially illegally and ignored privilege concerns, the government then let the seized material sit around for five years, before rifling through it again without a new warrant this year: “Inexplicably, the government elected not to seek a new warrant for the 2025 search, even though the 2025 investigation was focused on a different person, was exploring a fundamentally different legal theory, and was predicated on an entirely different set of criminal offenses.” Oh.
• Judge Fitzpatrick notes that “seeking a new warrant under these circumstances would have required a fresh legal analysis and likely resulted in some delay, a delay the investigative team could not afford given that the statute of limitations would expire in a mere 18 days.” Oh.
• Writes the judge: “If a new warrant had been sought by the government and issued by the Court, the Fourth Amendment would have required it to be narrowly tailored, authorizing access only to materials within a limited time frame and relevant to the new offenses under investigation. In addition, any new warrant would have imposed strict procedural safeguards to ensure privileged information was not reviewed by the prosecution team. As a result, the parameters of the 2025 search would inevitably have had a different and much narrower scope than the Richman Warrants. Faced with this prospect, the government chose to unilaterally search materials that were (1) seized five years earlier; (2) seized in a separate and since closed investigation; (3) that were never reviewed to determine whether the seized information was responsive to the original warrants; (4) that were likely improperly held by the government for a prolonged period of time; (5) that included potentially privileged communications; (6) did so without ever engaging the privilege holders; and (7) did so without seeking any new judicial authority.” Oh.
• The judge continues: “Having decided to forge ahead under these highly unusual circumstances, the FBI agent conducting the September 12, 2025 search of the disc containing information from Mr. Richman’s iPhone and iPad was specifically instructed to seize ‘conversations between [Mr.] Richman and [Mr.] Comey.’ There appeared to be no precautions in place to avoid the collection of privileged communications.” The result? The investigating agents quickly began handling privileged material. Oh.
• The government then presented the matter to the grand jury using the same agent who had been exposed to the privileged material: “Agent-3, rather than remove himself from the investigative team until the taint issue was resolved, proceeded into the grand jury undeterred and testified in support of the pending indictment. In fact, Agent-3 was the only witness to testify before the grand jury in support of the pending indictment. 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.” Oh.
• Lindsey Halligan appears to have, on two occasions, misstated the law to the grand jury. The prosecutor is, remember, the grand jury’s legal adviser, yet “the Court has identified two statements by the prosecutor to the grand jurors that on their face appear to be fundamental misstatements of the law that could compromise the integrity of the grand jury process.” Oh.
• Both statements are redacted from the opinion, but the contours of both can be gleaned from surrounding text. Judge Fitzpatrick describes the first as “a fundamental and highly prejudicial misstatement of the law that suggests to the grand jury that Mr. Comey does not have a Fifth Amendment right not to testify at trial.” The statement, he writes, “was made in response to challenging questions from grand jurors, the context of which suggests the grand jurors may have reasonably understood the prosecutor to mean that if she could not satisfactorily answer their questions, then Mr. Comey would ‘[BRIEF REDACTION]’ answer these questions at trial.” Oh.
• The second statement, as the magistrate judge describes it, “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—perhaps better evidence—that would be presented at trial.” Oh.
• There is reason to worry that the grand jury transcripts presented to the court are incomplete, that there is missing material: “The short time span between the moment the prosecutor learned that the grand jury rejected one count in the original indictment and the time the prosecutor appeared in court to return the second indictment could not have been sufficient to draft the second indictment, sign the second indictment, present it to the grand jury, provide legal instructions to the grand jury, and give them an opportunity to deliberate and render a decision on the new indictment. If the prosecutor is mistaken about the time she received notification of the grand jury’s vote on the original indictment, and this procedure did take place, then the transcript and audio recording provided to the Court are incomplete. If this procedure did not take place, then the Court is in uncharted legal territory in that the indictment returned in open court was not the same charging document presented to and deliberated upon by the grand jury. Either way, this unusual series of events, still not fully explained by the prosecutor’s declaration, calls into question the presumption of regularity generally associated with grand jury proceedings, and provides another genuine issue the defense may raise to challenge the manner in which the government obtained the indictment.” Oh.

In response to this litany of concerns about what happened before the Comey grand jury, Judge Fitzpatrick offers a simple solution: disclose the grand jury materials to the Comey defense so that it can make whatever motions it likes—to dismiss the indictment or to suppress evidence—in response to the actual record. “The Court need not now determine whether any facts herein have been proven, or whether there is merit to any motion yet to be filed. That task may lie ahead,” he writes. For now, it is enough to say: 

[T]he record points to a disturbing pattern of profound investigative missteps, missteps that led an FBI agent and a prosecutor to potentially undermine the integrity of the grand jury proceeding. Therefore, in this case, “the Court has before it a rare example of a criminal defendant who can actually make a ‘particularized and factually based’ showing that grounds exist to support the proposition that irregularities may have occurred in the grand jury proceedings and may justify the dismissal of one or more counts of the indictment.”

Unsurprisingly, Halligan does not agree. In an emergency motion to stay the magistrate’s ruling, prosecutors argued that:

disclosure of grand jury materials is not warranted under the facts presented to the Magistrate Judge. Indeed, the government believes the Magistrate Judge may have misinterpreted some facts he found when issuing the latest order to release the grand jury materials to the defendant. For instance, whether the defendant has any standing to challenge the Richman materials, the full context of the statements made by the prosecutor to the grand jury, that Agent-3 was exposed to potentially privileged material, and that two indictments were presented to the grand jury. Additionally, the Magistrate Judge acknowledges he “did not immediately recognize any overtly privileged communications.” The possible exposure of privileged materials to the grand jury was the primary focus of the Magistrate Judge’s inquiry. Having seemingly settled that issue, the Magistrate Judge turns to premature issues such as suppression that have not even been briefed by the parties. 

In response, Judge Michael Nachmanoff, who presides over the overall case, stayed the order to give the government time to lodge its objections and the defense time to respond to those objections. All of which is scheduled to happen this week. So whether the Comey team actually gets to review the grand jury materials remains somewhat up in the air. 

In the meantime, Judge Fitzpatrick’s order stands as a kind of case study in the mingled malevolence and incompetence of the Trump administration’s efforts to target its political foes. In a brief economy of pages, it details a remarkable concatenation of abuses, errors, oversights, and stupidities—a race to do injustice so frenzied and hurried that Halligan and her FBI agents just can’t stop stepping on rakes.

All of this evil incompetence would be comical, except for the real world effects—incompetent evil being funny only in the movies.

Because what is the point of all this abuse and rake-stomping? It is all intended to deploy the legal system to establish a falsehood, which is that James Comey lied to Congress eight years ago and then doubled down on that lie, and thus obstructed a congressional investigation, five years ago.

And why is it important for the United States federal government to establish this lie as official truth? Because if Comey is not a liar, then a lot of things are true that aren’t allowed to be true—like, for example, that Donald Trump had, and may still have, an untoward relationship with Russia and its president that warranted serious investigation in 2017 and still warrants scrutiny today, that the Russia investigation and its progeny were not a witch hunt, that Trump has tried to rig the justice system from the earliest days of his presidency, and that an entire political movement has eagerly lied to itself, and to the public, to deny these reality. And that it has been doing so—however incompetently and malevolently—for eight years and counting. 

Just like Lindsey Halligan.

The Situation continues tomorrow, when Halligan’s objections to this opinion are due before Judge Nachmanoff.