The Situation: You Get To Play Lindsey Halligan’s Hand
She made her bed. Now you get to lie in it.
Published by The Lawfare Institute
in Cooperation With
You are Lindsey Halligan. You have a tough hand to play. Your case against James Comey has just been tossed out. You have been informed that you do not even occupy your office legally. Do you fold? Appeal? Reindict? Are you confused about what move comes next for you?
Don’t worry. We’re here to help. We made you a nifty flowchart of your options in the Comey case. It reflects all the many, many ways you can lose this case—how to dig yourself in deeper, throw good money after bad, and go all in on the weakest of weak cards.
Our suggestion is that you play this flowchart game a few dozen times before deciding your next move. Here’s what you’ll see if you go through this exercise: You lose. One way or another, embarrassingly or with a modicum of dignity. There is only one path to victory for you in this chart, and it involves the most inside of inside straights. In other words, your chances of success are slim.
Choose your own adventure by following the text here (and clicking the relevant links) or moving through the flowchart below:
1. On Nov. 24, U.S. District Judge Cameron McGowan Currie ruled that you were not lawfully appointed and threw your case against former FBI Director James Comey out of court. Do you appeal this decision? If yes, go to [13], if no, go to [22].
- Judge Currie’s Nov. 24 ruling granted Comey’s motion to dismiss the government’s indictment against him, citing the unlawful appointment of Halligan as interim U.S. attorney. Attorney General Pam Bondi appointed Halligan—citing 28 U.S.C. § 546 as authority—after the resignation of Erik Seibert, who reportedly voiced concerns about the Justice Department’s case against Comey. After holding a hearing on the matter, Judge Currie ruled that Halligan was unlawfully appointed in violation of § 546 and the Appointments Clause, and dismissed the indictment against Comey without prejudice—because Halligan lacked the authority to present it. Judge Currie held that under § 546, “the Attorney General’s authority to appoint an interim U.S. Attorney lasts for a total of 120 days from the date she first invokes section 546 after the departure of a Senate-confirmed U.S. Attorney.” If that position stays vacant at the conclusion of that 120 period, she found, then the “exclusive authority to make further interim appointments under the statute shifts to the district court, where it remains until the President’s nominee is confirmed by the Senate.” Judge Currie explained that Halligan’s appointment is not consistent with the aforementioned framework, and that the attorney general’s appointment authority thus expired on May 21—120 days after Bondi appointed Siebert. Siebert could lawfully continue to serve from that point until Sept. 19, when he was pushed out, because the district court for the Eastern District of Virginia had lawfully appointed him pursuant to § 546(d). But Halligan’s appointment was invalid from the moment Bondi purported to appoint her on Sept. 22, since only the district court could replace Siebert after Siebert’s original 120 day period had run. The case must be dismissed because, she wrote, Halligan was not “lawfully exercising executive power when she appeared before the grand jury alone and obtained [Comey’s] indictment.”
2. Did you even manage to present the indictment properly to the grand jury? If so, go to [3]. If not, go to [12].
- On Nov. 19, Halligan and her team conceded in open court that they never showed the operative two-count indictment against Comey to the entire grand jury or presented the document in the grand jury room. Later that day, Halligan and her team confirmed in a written submission to the court that the full grand jury never saw or voted on Comey’s two-count indictment. According to the government, on Sept. 25, Halligan proposed a three-count indictment to the grand jury. The grand jury rejected the indictment, with the foreperson reporting that, “‘12 or more grand jurors did not concur in finding an indictment’ as to proposed ‘Count 1 only.’” The government’s written notice to the court states that the foreperson then “signed an indictment that contained only the two counts for which the grand jury had determined that probable cause existed to indict" and that the “two charges contained in that indictment are identical to the second and third charges that were included in the proposed indictment” originally provided to the grand jury. On Nov. 20, however, Halligan and her team changed their story. In a filing to the court entitled “Government’s Notice Correcting the Record,” Halligan claimed that the grand jury did, in fact, vote on and “true-billed” Comey’s two-count indictment. The government argued that “any assertion that the grand jury ‘never voted on the two-count indictment’ is contradicted by the official transcript.” On Nov. 21, Comey’s team filed a motion to dismiss the indictment on the grounds that the grand jury never approved the operative indictment and thus Comey’s prosecution violates the Fifth amendment.
3. Did you bring the indictment vindictively? If so, go to [12]. If not, go to [4].
- On Oct. 20, Comey filed a motion to dismiss the government's indictment, claiming selective and vindictive prosecution. In the 51-page motion to dismiss, the defense cited President Trump’s retaliation against Comey’s First Amendment-protected speech and personal animus against Comey. Comey’s team asserted that Trump “ordered the Department of Justice to prosecute Mr. Comey because of personal spite and because Mr. Comey has frequently criticized the President for his conduct in office.” The motion also includes a 60 page list of the president's public statements highlighting his animus towards the defendant. On Nov. 3, the government filed its response to Comey’s motion to dismiss. The government argued that the legal standard to establish a vindictive-prosecution defense is one of a “heavy burden” for the defense, and that Comey’s claims do not meet this standard. The government also claimed that there is no “direct” evidence that President Trump ordered Comey’s prosecution, and that there is also no evidence to prove that Halligan or Trump are retaliating against Comey for his exercise of his freedom of speech prior to his prosecution; and even assuming vindictiveness or animus on Trump’s part, neither can be “imputed” to Halligan. Judge Michael Nachmanoff held a hearing on this motion on Nov. 19.
4. Did you indict Comey over a Q&A too vague to support a criminal charge or for which Comey gave a literally true answer? If so, go to [12]. If not, go to [5].
- Both of the government’s charges against Comey arise out of the former FBI director’s testimony before the Senate Judiciary Committee on Sept. 30, 2020. Count 1 alleges that Comey violated 18 U.S.C. § 1001(a)(2) by falsely asserting in that testimony that he had not "authorized someone else at the FBI to be an anonymous source in news reports” regarding a specific FBI investigation. Count 2 alleges that by making these “knowingly false” statements before the committee, and for vaguely specified other conduct, Comey obstructed a congressional proceeding in violation of 18 U.S.C. § 1505. On Oct. 30, Comey filed a motion to dismiss the indictment, on the grounds that the testimony he provided to the Senate Judiciary Committee was “literally true” and in response to Sen. Ted Cruz’s (R-Texas) “fundamentally ambiguous questions.” More specifically, Sen. Cruz—after speaking for more than a minute—asked Comey to recall statements he made more than three years prior and simultaneously address statements Cruz claimed were made by former FBI Deputy Director Andrew McCabe. According to the defense, Sen. Cruz “never indicated that he wanted Comey to address the statements or activities” of anyone other than McCabe, and thus his questioning was “fundamentally ambiguous.” Even if one were to determine that Cruz’s questions were clear, the defense argues, Comey provided answers that were "literally true” and thus were not in violation of § 1001(a)(2) or § 1505. In response, the government argues that Sen. Cruz’s questions were not fundamentally ambiguous, but instead were susceptible to two interpretations: “narrow and broad” and that it is up to the jury to decide which interpretation is the correct one. The government also asserted that the literal truth defense cannot apply in cases in which “the focus is on the ambiguity of the questions asked” and therefore Comey’s answers were not “literally true.”
5. Did the FBI violate the Fourth Amendment in 2019 or 2020 when it seized messages and emails between Comey and Daniel Richman? If so, go to [9]. If not, go to [6].
- On Oct. 13, the government filed a motion for the implementation of a filter protocol that would govern the handling and disclosure of potentially privileged material. More specifically, the protocol would allow government investigators to access quarantined digital data gathered from previous searches of Daniel Richman—a Columbia law professor and “Person 3” in Comey’s indictment—without violating attorney-client privilege. In response, Comey asserted that the government had no lawful basis to access this data, and that there were various constitutional questions about the searches that the court should resolve before addressing the question of a filter protocol. After a hearing on the matter, U.S. Magistrate Judge William Fitzpatrick ruled that the government must disclose all grand jury materials to the defense. In his opinion, Judge Fitzpatrick expressed concerns about how the government collected the evidence it presented to the grand jury—specifically with regards to search warrants of Richman’s electronic devices and email accounts obtained by the FBI in 2019 and 2020. According to Judge Fitzpatrick, the government’s execution of these warrants and subsequent handling of privileged materials may have violated the Fourth Amendment and multiple court orders, which “left the government unchecked to rummage through all of the information seized from Mr. Richman, and apparently, in the government’s eyes, to do so again anytime they chose.” In Comey’s Nov. 21 motion to dismiss the indictment based on Fifth Amendment, Rule 6, and grand jury violations, the defense argued that, “dismissal is independently warranted because of the government’s misconduct before the grand jury. Among other things, the government relied on information it obtained in violation of the Fourth Amendment and the attorney-client privilege; and it made serious misstatements of law to the grand jury.”
6. Did the FBI violate the Fourth Amendment in 2025 when it rifled through those messages without a separate warrant? If so, go to [9], if not, go to [7].
- According to Judge Fitzpatrick, the Richman materials “sat dormant with the FBI” from the close of the Richman investigation to the summer of 2025, “when the Bureau chose to rummage through them again” in its investigation of Comey. Judge Fitzpatrick also highlighted the government’s “inexplicable” decision to not seek a new warrant for the 2025 search of Richman’s information, despite the fact that the new 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.” Judge Fitzpatrick also recognized that if the government did pursue a new warrant, it would have likely led to delays that could have jeopardized the government’s case against Comey, since the statute of limitations for prosecuting his alleged conduct would have expired. If the government did seek a new warrant, Fitzpatrick writes, 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.” Any new warrant, the judge added, would have “imposed strict procedural safeguards to ensure privileged information not reviewed by the prosecution team,” and thus, the framework for a 2025 search of these materials “would inevitably have had a much different and much narrower scope” than the warrants executed in 2019 and 2020. Rather than obtain a new warrant, 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.” At the end of his ruling, Judge Fitzpatrick explained that the government's potential Fourth Amendment violations “establish a reasonable basis to question whether the government’s conduct was willful or in reckless disregard of the law.” In Comey’s Nov. 21 motion to dismiss the indictment based on Fifth Amendment, Rule 6, and grand jury violations, the defense argues that, “dismissal is independently warranted because of the government’s misconduct before the grand jury. Among other things, the government relied on information it obtained in violation of the Fourth Amendment and the attorney-client privilege; and it made serious misstatements of law to the grand jury.”
7. Did you infringe the attorney-client privilege when you presented the case to the grand jury using as your only witness an FBI agent who had been exposed to privileged materials from those searches? If so, go to [9], if not, go to [8].
- In the same order, Judge Fitzpatrick explained that in the government's review of information collected from Richman’s devices and emails “there appeared to be no precautions in place to avoid the collection of privileged communications.” Note that at the time during which some of these email exchanges took place, Richman was serving as Comey’s personal lawyer, and thus certain conversations between the two could have been protected by attorney-client privilege. On Sept. 12, an FBI agent was specifically instructed to seize any conversations between Richman and Comey from Richman’s iPhone and iPad. That agent collected the relevant information and shared it with another agent—referred to as Agent 2 in the opinion—who identified the newly seized communications involving Comey and Richman as potentially privileged. Hours before the government was set to present its case to the grand jury on Sept. 25, 2025, Agent 2 notified the lead case agent (described in the opinion as Agent 3) that evidence obtained in the Comey investigation “may constitute attorney-client privileged or attorney-client confidential information” as well as “attorney work-product information” and provided a “limited overview” of the privileged communications. Later that day, rather than remove himself from the investigation, Agent 3, Fitzpatrick writes, “proceeded into the grand jury undeterred and testified in support of the pending indictment.” Agent 3 was the government’s only witness before the grand jury. Based on these facts, Fitzpatrick concluded the defense has a reasonable basis to challenge “whether privileged information was used, directly or indirectly, by the government to prepare and present its grand jury presentation” and that “the nature and circumstances surrounding the disclosure of potentially privileged information establish a reasonable basis to question whether the government’s conduct was willful or in reckless disregard of the law.” In Comey’s Nov. 21 motion to dismiss the indictment based on Fifth Amendment, Rule 6, and grand jury violations, the defense argues that, “dismissal is independently warranted because of the government’s misconduct before the grand jury. Among other things, the government relied on information it obtained in violation of the Fourth Amendment and the attorney-client privilege; and it made serious misstatements of law to the grand jury.”
8. Did you corrupt the grand jury process when you made erroneous legal statements to the grand jury? If so, go to [9]. If not, go to [15].
- Also according to the Nov. 17 order, after reviewing a transcript of the grand jury proceedings, Judge Fitzpatrick identified two of Halligan’s statements made before the grand jury that “on their face appear to be fundamental misstatements of the law that could compromise the integrity of the grand jury process.” While Halligan’s exact statements are redacted, her first statement, according to Fitzpatrick, was “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 judge adds that Halligan’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.” Halligan’s second statement to the grand jury was also redacted. Fitzpatrick asserts, however, that her statement “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.” In Comey’s Nov. 21 motion to dismiss the indictment based on Fifth Amendment, Rule 6, and grand jury violations, the defense argues that, “dismissal is independently warranted because of the government’s misconduct before the grand jury. Among other things, the government relied on information it obtained in violation of the Fourth Amendment and the attorney-client privilege; and it made serious misstatements of law to the grand jury.”
9. Does the court dismiss on this basis? If so, go to [12]. If not, does Comey file a motion to suppress evidence on the basis of this? If so, go to [10]. If not, go to [6].
10. Does this motion prevail? If so, go to [11]. If not, go to [15].
11. Do you still have enough evidence to go to trial? If so, go to [15]. If not, go to [27].
12. The case is dismissed. Is it dismissed with prejudice? If so, go to [13]. If not, go to [14].
13. Do you prevail at either the Fourth Circuit Court of Appeals or at the Supreme Court? If yes, go to [23]. If not, go to [22].
14. Do you or your successor try to reindict? If so, go to [25]. If not, go to [27].
15. Does Comey file any other motions to dismiss? If so, go to [16]. If not, go to [17].
16. Do any of them prevail? If not, go to [17]. If so, go to [12].
17. The case goes to trial. After hearing evidence, does the judge let the case go to jury or dismiss the case under Rule 29? If it goes to a jury, go to [19]. If not, go to [18].
18. Comey is acquitted. You lose, and there is no appeal.
19. The case goes to a jury. Can you persuade a jury unanimously using admissible evidence only that Comey is actually guilty. If not, go to [18]. If yes go to [20]. If there is a hung jury, go to [21].
20. Congratulations! You win! At least at district court level. Now Comey appeals on all those motions you prevailed on! How do you like your chances at the Fourth Circuit? Go to [13].
21. Do you want to retry the case? If yes, go to [17]. If not, go to [27].
22. You lose. The court will appoint some other prosecutor to be interim U.S. attorney, and that person is most unlikely to try to reindict Comey, whose case might now be barred by the statute of limitations in any event. You are out of the case.
23. Congratulations, your case has been reinstated. You now get to run an extensive gauntlet of additional motions. Go to [2].
24. You lose. The case is over.
25. Is the case now barred by the statute of limitations? If yes, go to [27]. If not, go to [26].
26. Can you persuade a new grand jury to indict in this case? If yes, go to [3]. If not, go to [24].
27. You drop your own case. You lose.
Katherine Pompilio is an associate editor of Lawfare. She holds a B.A. with honors in political science from Skidmore College.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
