Trial Dispatch: The Comey Hearing of Nov. 5, 2025

On the morning of Nov. 5, no satellite trucks gathered outside the Albert V. Bryan U.S. Courthouse in Alexandria, Virginia. In contrast to earlier hearings in United States v. James B. Comey—the presidentially targeted prosecution of the former FBI director—a relatively meager crowd mustered to hear a magistrate judge grapple with an obscure side-issue in the case. Moreover, legal reporters were stretched thin today by conflicting engagements: the momentous U.S. Supreme Court arguments over the legality of President Trump’s tariffs and, perhaps more distracting still, the final day of evidence in the celebrated assault trial of Sandwich Guy. 

This hearing did not touch on either marquee issue overshadowing the Comey case: his motion to dismiss for vindictive and selective prosecution or his motion to dismiss (consolidated with a similar motion by defendant New York Attorney General Letitia James) alleging that indictment-signer Lindsey Halligan was not lawfully appointed as Interim U.S. Attorney. Rather, the centerpiece was a government request for a filter protocol that would enable investigators to comb through currently quarantined digital data gathered from prior searches of attorney and Columbia Law School professor Daniel Richman without violating attorney-client privileges. Comey responded that there were more fundamental issues relating to the constitutionality of the searches in question that the court needed to address before reaching, if ever, the question of a filter protocol.

Nevertheless, the hearing brought far more drama than was anticipated. Before the brisk, 50-minute hearing ended, Magistrate Judge William Fitzpatrick had unexpectedly ordered the government to turn over all transcripts of the grand jury proceedings to Comey and his counsel—without their having asked him for that relief. (Two days after the hearing, on Nov. 7, the government appealed this portion of Fitzpatrick’s ruling to presiding Judge Michael Nachmanoff. Confusingly, while Comey’s attorneys had not asked Fitzpatrick to turn over those grand jury minutes, they had asked Nachmanoff to do so in a separate motion, not yet ruled upon, which was based on a broad array of concerns, one of which was an attorney-client privilege issue that was also before Fitzpatrick. Meanwhile, a third judge, Cameron McGowan Currie of South Carolina—sitting by designation to resolve the motions challenging Halligan’s appointment—had previously, and also without being asked by either party, ordered those minutes turned over for inspection, but only by her, in camera.) 

In addition, as the attorneys discussed the issues over the course of the hearing, the public learned more about these curious, stale search warrants issued at least five years ago in a different judicial district to Richman.

The Hearing

If the courtroom clock was correct, Magistrate Judge Fitzpatrick began the hearing two minutes early—consistent with his district’s reputation as a “rocket docket.” Though Comey’s lead counsel, Patrick Fitzgerald, was sitting to Comey’s right at counsel table, it was co-counsel Rebekah Donaleski of the Cooley law firm, seated to Fitzgerald’s right, who handled the bulk of this hearing.

For the government, Assistant U.S. Attorney N. Tyler Lemons had the only speaking role. Putative U.S. Attorney Lindsey Halligan sat to his right, and A.U.S.A. Gabriel Diaz, to hers.

Before addressing the government’s motion for a filter protocol, Mag. Judge Fitzpatrick addressed four motions relating to whether certain documents needed to remain sealed. But the parties were not far apart—the documents could be made public with minor redactions—and Fitzpatrick swiftly resolved those issues and moved on. 

He told prosecutor Lemons that he needed to know more about where things stood. To understand the basics, Fitzpatrick began quizzing him. 

So there are three warrants out of the District of Columbia? 

Correct. 

And they involve four devices—or sets of materials seized?

Correct.

These were warrants issued in 2019 and 2020?

Correct. 

And the government has gone through, reviewed these materials, separated out what it thinks is responsive to the subpoena, and what it thinks the court authorized it to seize, correct?

Lemons then interrupted the flow. There was a very important interceding step, he stressed. Before the government reviewed anything, he asserted, it provided it to the individual to whom the warrant was directed and other interested parties. They were able to review the materials first to withdraw what they considered privileged information. A subset of the materials was then returned to the government. 

Although Lemons avoided naming Richman up to this point—even though the defense had identified him in their papers— that punctilio now fell by the wayside. At every step, Lemons continued, Richman and his attorney were able to review the materials before the government saw them and were able to provide an attorney-client filtered version to the government. With respect to emails relating to Columbia University, he added, the school was also permitted to filter and withhold information with an eye to protecting academic freedom.

The judge resumed the quizzing.

But Comey was not one of those individuals?

No, but we know that— 

The judge interrupts. Was information provided to Comey and his counsel so they could assert an attorney work-product or attorney-client privilege? 

Lemons replied that Richman was Comey’s defense attorney, so he would have had ongoing obligations to protect his prior client. In that sense, Lemons argued, Comey had a chance to assert privilege.

The judge was not buying it. He pressed: Comey is the privilege holder. Did Comey have an opportunity to review those materials?

Lemons responded that he was aware that some portion of the materials provided to Richman and his attorney were later provided by them to Comey’s attorneys before being filtered and returned to the government. But the extent to which Mr. Comey had access and reviewed it—"I don’t know,” Lemons conceded.

Judge Fitzpatrick then turned to a second key issue. 

The materials identified as privileged at that time—in 2020 and 2021—were they separated out?

Correct, and privilege logs were provided.

So if Richman asserted a privilege over certain materials, did a court resolve that privilege dispute? Did the government honor the privilege assertion? Or were materials reviewed by agents anyway?

Lemons asserted that the government honored those privilege assertions and never challenged them before a court.

Of the four devices—the four buckets of information seized—what has the government reviewed?

Until now, said Lemons, going back to 2019 and 2020, the filtered results provided by Richman and his attorney have been reviewed by the prior investigative team. 

Those are the materials Dan Richman did not assert a privilege over, right? 

Correct. Where no privilege was asserted, the government did review that information.

Now Lemons attempted to diffuse defense assertions that an agent on the government’s current investigative team may have examined—and, therefore, been “tainted” by—attorney-client privileged materials.

More recently, Lemons said, the government agent began to review digital data—data from one of the search warrants—and observed a conversation. Eventually he realized that the conversation was going into attorney-client confidences. The agent did the right thing, Lemons continued. He stopped and brought it to the attention of his supervisors. There has been no further review since then. That was in 2025. 

Was that conversation in materials that had been identified as privileged by Richman? Or was it in the materials that had been released by Richman and his attorneys?

We stopped any review, said Lemons—not answering the judge’s question. The instruction to the investigative team was: Do not review any more digital evidence until we have a judge-approved plan for doing so. Lemons notes that he came to the government team a week or so later. So he was informed then that there was potentially a taint issue.

Magistrate Judge Fitzpatrick tried again.

I guess my question was: Was the agent reviewing materials that Richman had already asserted a privilege over? Or was he reviewing materials Richman or any other privilege holder had reviewed and said, “We’re not asserting a privilege here”?

Lemons admitted he did not know for sure. His assumption, he said, was that the agent was reviewing material that had not been filtered by Richman or his attorneys. 

But at this point, the judge asked, back in 2019, the government knew Richman was Comey’s lawyer, right? 

Lemon said he did not know what the investigative team knew in 2019 and 2020. 

Lemons then raised a factor he wanted the judge to consider with respect to the taint issue. In the conversation being reviewed that raised that issue, he said, the telephone name of one of the participants was “Michael Garcia.” It wasn’t like the agent went in reviewing a conversation between the defendant & Richman, Lemons stressed. It was a conversation between the defendant and “Garcia.” Only later did the agent come to understand that “Michael Garcia” was Richman using a pseudonym.

The information reviewed in 2019 to 2020—who reviewed that information? 

A collection of FBI agents and forensic examiners, Lemons responded. Two or three agents. One AUSA as a filter attorney.

What was the information used for from 2019 until now? 

A variety of things. A grand jury investigation. Also, the three warrants built on one another in terms of obtaining subsequent warrants.

At this point the judge pressed Lemons on an issue he appeared to regard as crucial.

When was first time Comey or his counsel was engaged on this privilege issue? 

That depends on how you define it—

When was the first time Comey was asked to review these materials and let you know about the privileges he asserts?

I don’t know if the question has ever been given directly to Comey, Lemons admitted.

What efforts were made, from 2019 on, to identify any privilege Comey wants to assert over these materials?

“I’m not aware of any,” Lemons admitted. 

At this point, the judge and Lemons discussed whether a proposed filter protocol that he had submitted—which called for AUSAs from outside the Eastern District of Virginia to review the materials to filter out potentially privileged information—complied with a key precedent from the U.S. Court of Appeals for the Fourth Circuit.

Lemons said it did, but signalled his readiness to accept other arrangements acceptable to the judge. The government asked for input from the defense, he explained, but its position was that that stage had not yet been reached. So the government submitted a protocol used and approved by courts in the past. But if the court was not comfortable with AUSAs from another judicial district doing the filtering, he said, that did not have to be the way it was done.

The magistrate then asked if the digital data from the searches had been turned over to the defense.

Lemons said the government was not able to do that.

Why can’t you just mirror it and turn it over?

We don’t want to take any steps until the court has weighed in, Lemons explained. The data is currently isolated on a disk at FBI headquarters. There were text messages that were printed out and quarantined. We’re not going to touch this evidence until a court approves. 

At this point, Fitzpatrick turned to the defense for its input.

Donaleski said she wanted to frame what her team regarded as the issues. Soon the dispute took on a decidedly different complexion.

There are four search warrants, Donaleski explained. (The discrepancy between her reference to four warrants and the government’s prior references to three was never explained.) Only three went through any filter protocol, she continued. The first was from Aug. 29, 2019, and sought Richman’s hard drive. A government filter team filtered that.

The second warrant was issued in October 2019 and was for certain email accounts at Columbia. Columbia’s counsel and Mark Hansen, Richman’s counsel, did an initial filtering of those materials, but they did no “responsiveness” review. (A responsiveness review ensures that the materials are within the enumerated categories of information that the search warrant sought.)

Richman’s and Columbia’s attorneys, Donaleski continued, turned over to the government—the prosecutors & investigators leading the Arctic Haze probe—materials from which they’d withheld privileged or student-sensitive material. Those were supposed to be further reviewed by the government. (Arctic Haze was an investigation, which lasted from 2017 to 2021, that focused, in part, on an alleged unauthorized disclosure of classified information in an April 22, 2017, New York Times article.)

Each warrant, Donaleski stressed, required the government to conduct a responsiveness review and then seal and not review the nonresponsive set of documents. She said she still didn’t know if that ever happened and added that Lemons did not mention anything about such a review in his remarks. 

Let’s deal with that right now, the judge interjected. Is there a separated subset of information that is responsive to the warrant? Have non-responsive materials been segregated off?

Lemons rose and responded: We don’t know the answer and won’t until we plug in the disks or hard drives that the information is stored on.

That response prompted a series of followup questions from the judge.

Did you file a return for these warrants?

There were returns filed in 2019 and 2020.

What did they say?

They described the evidence seized.

Donaleski now intervened. She said the government provided the defense with affidavits that describe what happened. From those, she said, it sounded like the agent accessed the filtered returns—from both the responsive and nonresponsive sets of materials—because neither Dan Richman’s counsel nor Columbia’s did a responsiveness review.

If so, she continued, that violates the Fourth Amendment. The government cannot go back into a nonresponsive set of documents and continue searching pursuant to stale warrants for separate offenses. 

Here, Donaleski resumed walking through the four warrants. The January 2020 warrant was for Richman’s iCloud account, she said. That went through a filter process by Richman’s counsel. The government in the Arctic Haze investigation was aware that Richman represented Comey and, for that reason, the warrants specified that the government could only seize non-privileged materials.

Donaleski returned to her key point. To the extent the government now wants to look at any material that Richman’s counsel identified as privileged, those materials were never within the scope of warrant. They were never properly seized. No one can look at those, she insisted. 

Again, Donaleski argued, the government can’t go back five years later, under stale warrants for separate offenses, and look at those materials.

Resuming her methodical overview of the warrants, Donaleski said that the final one was issued on June 4, 2020, and sought “backups” from Richman’s iPhone and iCloud account which had been found on the initial hard-drive, covered by the first warrant.

Hansen, Richman’s counsel, did a filter review of those materials, Donaleski continued, and provided a filtered set to the government in November 2020. That is what the defense believes the government has now accessed, Donaleski said.

She then made a couple final points with respect to the filter process then in place.  “Mr. Comey was not involved,” she said. “Full stop.” Dan Richman had his own counsel to protect Dan Richman, she continued. But Richman can’t waive Comey’s privilege. 

She turned to the taint issue. She said that the defense team still did not know what the government saw when the taint happened; still did not know what materials were on the backups; still did not know what was withheld as privileged. The defense never received copies of any of this material, she said.

That’s critical, she added, because here the government has produced to the defense materials obtained from the Arctic Haze warrants. On Monday (Nov. 3), she noted, the government filed in court text message chats that came from the Arctic Haze warrants.  So it’s unclear to the defense what the government has done, she said. It says it’s paused its review. But where did it get the Arctic Haze materials it has produced to the defense and provided to the grand jury? Where did it get the materials it posted on Monday on the docket?

Donaleski said the defense is “gravely concerned” with the government’s conduct and suspects that an unconstitutional search occurred in September of this year. And it’s concerned that the government is continuing to make use of Arctic Haze materials that Comey has never been able to review for privilege. 

We’re going to fix that, says Magistrate Judge Fitzpatrick, and fix that today.

Fitzpatrick asked what information Donaleski needed in order to file a motion to challenge the search and the government’s continued use of these documents.

Prepared for this inquiry, Donaleski ticked off five categories of information she wanted.

First, she said, the defense needed to know if Arctic Haze agents made a responsive set of materials and then sealed a nonresponsive set pursuant to those warrants.

Second, it needed to know if agents preserved the nonresponsive materials for five years. Under Fourth Circuit precedents, she said, that would not be reasonable and the prolonged retention of nonresponsive electronic data can render a search unconstitutional.

Third, she needed to know what was in the responsive set of materials. Was it narrowly tailored or was everything in the iCloud batch marked as responsive, for instance, rendering it a general warrant.

Fourth, she wanted to know what the government has now and what it provided to the grand jury. She wanted to know where it got the materials it published Monday in its public filing.

Fifth, she wanted an order stopping the government from continuing to rummage through digital materials in violation of the fourth amendment, or to use and publish materials from these warrants when Comey has still had no opportunity to conduct a filter review or file a motion to suppress.  

Fitzpatrick appeared impressed with Donaleski’s presentation, but frustrated by the severe time constraints, with the Jan. 5 trial date looming, just two months away.

“The procedural posture of the case is highly unusual,” he said. “Right now we’re in a bit of a feeling of ‘indict first, investigate second.’”

But he continued, with adamance: The questions Donaleski asks are going to be answered. She’s entitled to know with great specificity how these warrants were executed; how the information was separated; how it was used—including in the grand jury proceedings.

As part of this, he said, he was going to order the government to disclose all grand jury materials. Not just the testimony of the agent, but anything said during the course of the grand jury. Any instructions. Any presentations. Any questions asked of the agent or of the U.S. attorney. That needs to be provided to the defense by the close of business tomorrow, he said.

Fitzpatrick asked if the defense could be ready to file motions challenging the search or use of these materials within a week.

After conferring with co-counsel, Donaleski asked for two weeks, given the volume of materials and the press of all the other motions the team is litigating. 

Fitzpatrick told her, “You’re getting everything,” but he might not be able to afford the defense all the time it would ordinarily get. He admitted that this seemed “a bit unfair.” The government had had this for five-and-a-half years, he observed. He was asking the defense to do a lot in a short time. It was an unfair burden the government placed on the defendant but he didn’t see another path forward, he said. 

He gave Comey’s team two weeks to file motions, commencing from the day it receives the materials. He would not commit to how much time he’d give the government to respond until he saw what, if any motions, the defense actually filed.

After some discussion of logistics, the hearing concluded.

Toward the end of the same day, Fitzpatrick issued a written order detailing the government’s precise obligations in terms of turning over disputed search materials as well as the complete minutes of the grand jury proceedings.

* * *

On the morning of Nov. 7, the government appealed the portion of Fitzpatrick’s order relating to grand jury minutes to Judge Nachamanoff, alleging that it was outside the scope of  Fitzpatrick’s delegated authority and that Fitzpatrick had failed to make certain prerequisite, particularized, factual findings. Within hours, Judge Nachmanoff rejected the first claim, stating that Fitzpatrick had ample authority, but remanded to Fitzpatrick to make the findings.