Judge temporarily blocks Justice Department’s use of evidence in dismissed Comey case

Former FBI director James Comey speaks during a Senate Intelligence Committee hearing on Capitol Hill, in Washington, DC on June 8, 2017. (Andrew Harnik/AP via CNN Newsource)

A federal judge on Saturday temporarily locked down the Justice Department’s access to some evidence used in its criminal case against former FBI Director James Comey, just as the Trump administration prepares to seek a new indictment after the dismissal of previous charges early last week.

The judge’s order sets up a fast-moving emergency court proceeding over this week that could exclude key pieces of evidence from any future proceeding against Comey, potentially limiting what prosecutors may present to a grand jury after his previous case was dismissed for different reasons.

The development follows a court challenge from Comey’s friend and former lawyer Dan Richman, who went to court after learning federal investigators may have used unauthorized access to his digital communications to prosecute Comey.

Richman asked for his data to be returned and to block the Justice Department from accessing it without proper warrants. The judge temporarily agreed.

“The Court concludes that Petitioner Richman is likely to succeed on the merits of his claim that the Government has violated his Fourth Amendment right against unreasonable searches and seizures by retaining a complete copy of all files on his personal computer (an ‘image’ of the computer) and searching that image without a warrant,” DC District Court Judge Colleen Kollar-Kotelly wrote in a four-page ruling.

The court orders the DOJ to “identify, segregate, and secure” an image of Richman’s personal computer made in 2017 as well as his Columbia University email and iCloud accounts, any copy of those files, and “any material obtained, extracted, or derived” from the files currently in the government’s possession.

The judge ordered the Justice Department to certify by Monday that it is complying with the court. Further developments in the disputed evidence are expected this week.

The evidence the Justice Department collected from Richman’s online accounts, iPhone, iPad and a hard drive was becoming a serious issue in the recently dismissed criminal case against Comey in Northern Virginia.

Richman, a Columbia University law professor, called the Justice Department’s access to his files a “callous disregard” of his Fourth Amendment rights.

Saturday’s temporary court restriction also creates the possibility for a judge to dig into the allegations of prosecutorial missteps, which were not fully exposed or litigated in the Comey case before it was dismissed last Monday, or close off evidence prosecutors may want to use as they try to refashion charges against Comey related to his 2020 congressional testimony.

Comey had pleaded not guilty before the charges were dismissed. The indictment alleged he had misled Congress in 2020 on his interactions with Richman. The Alexandria, Virginia, grand jury heard evidence from the Richman files, according to court records.

Virgina federal magistrate judge William Fitzpatrick wrote last month that the original search warrants in the national defense leak investigation known as Arctic Haze didn’t authorize federal investigators to seize evidence related to Comey’s alleged crimes of lying to Congress in his 2020 testimony, the charges for which he was ultimately indicted.

The evidence from Richman was also dormant for years, and the Justice Department hadn’t obtained new warrants to access it again for investigating Comey this year, Fitzpatrick also noted. Comey’s team said they had never had access to the evidence before he was charged.

The Arctic Haze investigation never resulted in a criminal case, and Richman has never been charged.

The Comey criminal case ended abruptly last week with a separate judge’s ruling that Trump-backed lawyer Lindsey Halligan, who had been acting as the US Attorney in the Eastern District of Virginia and solely presented the case to the grand jury in late September, didn’t have prosecutor powers at that time.

The Justice Department has said it planned to appeal the decision voiding Halligan’s work, though that appeal hasn’t been filed yet.

Katelyn Polantz, Karina Tsui, CNN