← UnJustified
UnJustified
Particularized Incompetence
01:03:53
Judge Nachmanoff is tying up loose ends in the Jim Comey case by asking for final briefs on handing all the grand jury materials over to defense counsel after Judge Fitzpatrick laid out the particularized grounds that could topple the government’s case. A Department of Defense JAG lawyer was overruled by the Department of Justice over the legality of the lethal boat strikes in the Caribbean. Attorney General Pam Bondi says in a press conference that the Justice Department will “follow the law” when it comes to releasing the Epstein files pursuant to the bill passed by Congress and signed by President Trump. The 11th Circuit heard arguments from Trump to revive the RICO lawsuit he filed against 41 people including HRC over the Russia investigation and the $1M sanctions levied against him and Alina Habba for filing it in the first place. Plus listener questions…
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- [00:01]
A
Msw media.
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B
Judge Nakmanoff is tying up loose ends in the Jim Comey case by asking for final briefs on handing all the grand jury materials over to the defense counsel. After Judge Fitzpatrick laid out the particularized grounds that could topple the government's case.
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A
A Department of Defense JAG lawyer was overruled by the Department of Justice over. Over the legality of the lethal boat strikes in the Caribbean.
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B
Attorney General Pam Bondi says in a press conference that the Justice Department will follow the law when it comes to releasing the Epstein files pursuant to the bill passed by Congress and signed by President Trump.
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A
And the 11th Circuit heard arguments from Trump to revive the RICO lawsuit he filed against about 41 people, including Hillary Clinton, over the Russia investigation and the $1 million in sanctions levied him and Alina Haba for filing it in the first place. This is unjustified. Hey, Everybody. It's Sunday, November 23rd, 2025. I'm Alison Gill.
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B
And I'm Andy McCabe. Allison, how are we looking for next week? Are we planning a big hot show for after Thanksgiving or what does that. What does that look like?
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A
I thought that the big hot show for the Friday after Thanksgiving would include a new Comey filing to dismiss the case based on grand jury malfeasance. But he filed it Friday afternoon and we've had to shoehorn it into this show. So I'm sure there will be more to talk about. And yes, we are gonna record a show for next week, so you won't be missing us because of Turkey Day.
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B
There you go. So shake off the food coma by Sunday. Cause it's time to start listening to Unjustified again.
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A
Indeed. So when we last spoke here on Unjustified, we had an order from Jud Nachmanoff, that's the district judge in the Comey case, instructing the magistrate judge, Judge Fitzpatrick, to lay out the particularized grounds to justify Fitzpatrick's ruling that the government hand over all the grand jury material to Comey and his lawyers. So you'll recall Judge Fitzpatrick ordered those materials turned over, but the government objected, saying it's not fair. First of all, the magistrate judge doesn't have authority. And second of all, the magistrate Judge Fitzpatrick failed to list the reasons why Comey should get the grand jury materials. So District Judge Nachmanoff ruled that the magistrate, Judge Fitzpatrick did have the authority and said, oh, all right, you want a list of reasons why? And kicked it back down to Judge Fitzpatrick and said, go ahead and give him a list of reasons. Give him the particularized grounds on why this grand jury material needs to be handed over. And I have to say, Andy, as you know, I was hoping we would get to see all the problems with Lindsey Halligan's grand jury presentation before the other judge. Judge Curry dismissed the case for Lindsey Halligan's unlawful appointment. I never thought the government would demand that information themselves. So Judge Fitzpatrick could put Lindsey Halligan's incompetence and malfeasance on the public record. They asked for it, Andy.
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B
It's the. Oh, it's the classic be careful. Careful what you wish for, because sometimes you just might get it. And here they got it. Yeah. So Judge Fitzpatrick ordered the government to give him all the grand jury materials so he could review them in camera. And then on November 17, he made public all those problems with Halligan's presentation to the grand jury. So he listed not one, not two or three, but 11 particularized grounds explaining why the government has to hand over all the materials. In what can only be described As a blistering 24 page memorandum, Fitzpatrick says, for the reasons set forth below, the court finds the record in this case requires the full disclosure of grand jury materials. In so finding, the court recognizes this is an extraordinary remedy. But given the factually based challenges the defense has raised to the government's conduct and the prospect that the government's misconduct may have tainted the grand jury proceedings, disclosure of the grand jury materials under these unique circumstances is necessary to fully protect the rights of the accused.
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A
All right, so here's the 11. First, the judge said the facts establish a reasonable basis for the defense to challenge whether the Daniel Richmond warrants were executed in a manner consistent with the fourth amendment and the orders of the issuing court. So as it turns out, Andy, the government didn't get a warrant to search the materials seized from Dan Richmond in 2019 and 2020. So they got a warrant back in 2019 and 2020. But that was for a different investigation, different crimes. Right. And when you have a new crime and a new person you want to investigate and you have the materials sitting in your warehouse because you already seized them, you got to go and get a second. You have to get a warrant to search them again.
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B
That's right. Because this gets to the core of this thing that prosecutors refer to as the four corners of the warrant. So when you write up a warrant and you're requesting a judge find probable cause to believe that there's evidence of a crime inside someone's email account or something like that, you basically have to make the argument of what you think is in there and what crime you think it's evidence of. And so whatever you describe in that warrant, you are limited to information that falls within the scope of that description. So you can't go back years later, pull that stuff out of the drawer and say, oh, we're looking at Comey again for an entirely different thing, and just start culling through the information you received with that earlier warrant.
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A
Right. Especially without a filter team to discover or to think about what's going on.
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B
Yeah, that's another whole problem.
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A
Yeah, we'll get to that in a second.
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B
Another speed bump in the road for Ms. Halligan.
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A
But we have a perfect example of this. This happened during the January 6 investigation into Trump. So Rudy Giuliani had his house and office searched and a bunch of stuff was seized pursuant to an investigation about his shenanigans over in Ukraine. Okay?
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B
Right, right.
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A
And so when Merrick Garland got to. Actually, I think it was even before Merrick Garland got to the Department of justice in 2021, after January 6th, sometime in that first three months, I think it was Molly Gaston who sought a second search warrant for that. That stuff that was seized in the Ukraine investigation into Rudy Giuliani. And she had to go to court. She had to get a judge to sign off on that warrant. She had to get the warrant, she had to apply for it. Then she had to get a privilege team together to go through the stuff because Rudy Giuliani is an attorney, and they had to look for privilege stuff. Then they have to litigate with the people who are subject to that privilege. What is privileged? And they have to put it like the Eastman emails. Right. There's a privilege log takes a bunch of time. Right. So a lot of folks are like, what takes so long? With the January 6th investigation, this kind of stuff, getting that second warrant, litigating what's privileged, putting a filter team in place. But they got all of that and were able to use that stuff pursuant to their second warrant. But here in the Comey case, they didn't have time to do all that because the statute of limitations was about to expire. So they. Andy, they just didn't get a warrant.
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B
They did not. And there's another underlying problem here for them, which is that the judge in the original case that was responsible and issued for the warrants in 2019 and 20 actually included specific instructions in those warrants that required the destruction and removal of any evidence that was not relevant to that case. It turns out they never did that. They just kept everything they seized and let it sit around until 2025 when they decided to take another look at it.
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A
Right. And so Comey wants the grand jury tapes so he can see how much of that evidence, how much of the fruit of the poison tree stuff that was searched and seized illegally, how much of that Halligan used that, you know, that she never. That she never got a warrant for. And that's what the next five findings of the 11 are about.
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B
That's exactly right. So Judge Fitzpatrick goes on to say, second, the facts establish a reasonable basis for the defense to challenge whether the government exceeded the scope of the Richmond warrants in 2019 and 2020 by seizing and preserving information that was beyond the scope of the warrants, that is, information that did not constitute evidence of violations in either 18 USC 641 or 793. Those were the statutes they were investigating back at that time. Do you see how he uses those words? By seizing and preserving, it's the preserving. They kept stuff that wasn't relevant, wasn't evidence, when they should have destroyed it. He goes on to say, third, the facts establish a reasonable basis for the defense to challenge whether the government had the lawful authority to search the Richmond materials anew in 2025. Fourth, the facts establish a reasonable basis for the defense to challenge Whether the government's 2025 seizure of the Richmond materials included information beyond the scope of the original warrants.
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A
That's what you were talking about, right? In those three things there, when you said that they seized a bunch of stuff that was supposed to be destroyed because it was outside of the bounds of the warrant itself, but it never was. So they had all this extra stuff that wasn't even in the four corners of the warrant in 2019 and 2020. That's right.
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B
That's right.
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A
My goodness. All right, more on not getting the warrant. Fifth in the list of 11. The nature and circumstances surrounding the government's potential violations of the Fourth Amendment and court orders establish a reasonable basis to question whether the government's conduct was willful or in reckless disregard of the law. So did they. Were they jerks on purpose or on accident?
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B
Right.
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A
Sixth, the facts provide a reasonable basis for the defense to show that they were prejudiced by the government's use of the Richmond materials in the grand jury, particularly if the government's conduct was willful or reckless, given the centrality of those materials to the government's presentation. So then we shift over to the next three findings in the 11, which are about whether the FBI witness was operating on privileged material since comey never got a chance to review it and argue and litigate privilege.
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B
Right. So he says. Seventh, the facts establish a reasonable basis for the defense to challenge whether the government took sufficient steps to avoid the collection and review of privileged materials, including the reasons why Mr. Comey was never afforded the opportunity to assert a privilege over his communications until after the indictment was obtained. And let me just say here, this is a reference to what he explains at length in the memo, which is the timeline here. So Richmond was under investigation as the person who may have been leaking things on behalf of Jim Comey back in 2019 and 2020. But Comey made it clear to the government that he hired Richmond to act as his attorney On, I think, May 10, on the day or the day after he was fired from his role as director or expired.
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A
Oh, Comey was fired. Right, right, right.
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B
Comey was fired. Right. So at least as of may, let's say 10th, Comey had a attorney client relationship with Richmond. Now, several of the warrants, the scope of those warrants extends beyond May 10th. And while they did a preliminary review of Richmond's privilege to some of that material, they never even gave Comey the opportunity to say, hey, wait a minute, I am the client in this relationship. The privilege is mine. You should be asking me, showing me what you're going to use and asking me how much of it is privilege.
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A
Right.
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B
Okay. So he goes on to say, eighth, the facts establish a reasonable basis for the defense to challenge whether privileged information was used directly or indirectly, by the government to prepare and present its grand jury presentation. This is particularly troublesome because the government's sole witness before the grand jury was exposed to a, quote, limited overview of privileged material shortly before he testified. Ninth, 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. Or in reckless disregard of the law. This is particularly significant because Agent three, that's the agent who testified in front of the grand jury after having been exposed to potentially privileged information. Agent 3 chose to testify before the grand jury rather than separate himself from the investigation to contain any further exposure to privileged information and limit any prejudice to Mr. Comey. And the reference to willful or reckless disregard is, if the government's actions are determined to have been intentional, willful, or so so oblivious to the risk as to be qualified, as in reckless disregard of the risk, then this is more than just a mistake that can be cleared up. It is a. It is a transgression and a violation of the defendant's rights that must be remedied by throwing the indictment out. Every indictment, every grand jury presentation that has a little bump in the road isn't necessarily going to result in having an indictment thrown out. If it was, if it's determined to have been an inadvertent mistake, the government is frequently allowed to go back and fix it. But this is, this is like a threshold issue. If they went so far beyond the pale in terms of this disaster, they're going to have to take the remedy that they are really hoping they don't get stuck with.
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A
And then these final two points, number 10 and 11, it's just, it's some incredible stuff that the judge heard Halligan say to the grand jury when the judge reviewed the tapes of the grand jury presentation. And these are two instances where she got stuff completely wrong on the law, so he says. Tenth, as discussed in section 4 above, the prosecutor made statements to the grand jurors that could reasonably form the basis for the defense to challenge whether the grand jury proceedings were infected with constitutional error. So according to the transcripts, Andy Halligan told the grand jury something that's redacted, but in context, it appears to be violative of Comey's Fifth Amendment rights by insinuating he's got the burden of the proof and that if he pleads the Fifth or doesn't testify, that somehow gives a negative inference on him. She also told them something which is also redacted. That implies that while she doesn't have a lot of evidence now, she promises that it will come out later at trial. You don't have to decide based on the evidence in front of you today. You can decide on future awesome stuff that I've got up my sleeve. I mean, it's, it's redacted. So we're not quite sure what she said.
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B
But that is so bonkers. That is so bonkers. No, they have to decide based on the evidence you present that day, period. And usually it doesn't take a lot of evidence. It's just a grand jury determining whether or not there is probable cause to believe a violation occurred. It's a low bar, right? It's the infamous. You can undy a ham sandwich, but you cannot, cannot stand in front of a grand jury and say, if you're not quite convinced with the evidence that I've shown you in this presentation, don't worry, we've got much better stuff to show the jury at trial. And then what are they supposed to say? Oh, okay, we'll just take your word for it.
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A
So you have it now and you just don't want to show it to me or you think you're going to.
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B
Get it, or we should just render our judgment based on your promise of better evidence to someone else later.
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A
Right. And my question to her would be, if I were in the grand jury, well, why can't you show it to us now? Maybe she told the grand jury it's classified or maybe she. I don't. You know, that's why it's important that Comey get the grand jury proceedings.
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B
Right, right, right. And I mean, look, this is why you don't send someone in front of a grand jury by themselves who has never done it before, ever. In any case, nobody else would go.
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A
It's so crazy.
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B
Okay. Lastly, the judge says 11th, the grand jury transcript and recording likely do not reflect the full proceedings because although it is clear that a second indictment was prepared and presented to the grand jury, the transcript and audio recording of the proceedings do not reflect any further communications after the grand jury began deliberating on the first indictment.
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A
Now, this reflects what's interesting about that is the judge at this point, when he filed this, thought that it was clear that a second indictment was prepared and presented to the grand jury. And we are about to find out in a hearing that it wasn't presented to the grand jury. So the judge is just like, I mean, obviously you must have presented this sec because it's so banana pants to think that you signed an indictment that never got to in front of the grand jury. What that the judge is like, well, I mean, obviously you showed it to the grand jury, but it's missing here from the tapes.
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B
And this is a judge who just walked through your other 10 major mistakes. And even at that point, the judge is like, still giving them the benefit of the doubt because, like, no one would do this. It's so insane. No one would just like sign an indictment and hand it to a judge having never actually been presented to the grand jury. But in any case, this refers to the missing 139 minutes of tape. And they go into this in detail during the hearing that took place two days later on November 19th before Judge Nachmanoff.
- [18:53]
A
Yeah. When they find out that no, in fact it wasn't presented, but then the DOJ filed and said, no, we actually did, but then they don't really have proof that they did, it turns into this giant mess. So Nachmanoff ordered a final round of briefing and we're going to talk about what happened and what the government admitted to in that November 19th hearing and the briefings, but we're going to take a break first, so everybody stick around. We'll be right back.
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B
Foreign.
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A
Everybody, welcome back. Let's talk about the November 19th hearing. It's a doozy. The main takeaway from this hearing is that the grand jury never saw the redrafted two count indictment and they never voted on the final indictment. That's right. Judge Fitzpatrick, I know you are like, oh, of course they showed it to. But the tape's just missing that part, right? No, it never happened. Halligan only presented the case once. Anna Bauer from Lawfare laid out the facts of this discrepancy. After the hearing that she was at. She said, number one, Halligan. Here's what happened. Halligan presented the original indictment with the three counts against Comey. The grand jury deliberated for like two hours and took a vote. After deliberations, the great. And said no. Right. They no billed that one of the counts. After deliberations, the grand jury, four person informed the Eastern District of Virginia grand jury coordinator that there were not enough votes to indict on count one of the original three count indictment. Now, it's important to note that the first count was about Comey testifying that he never received reports about the Clinton plan, which was investigated by Durham and as it turns out was Russian disinformation. But put a pin in that because we learn later that the final count in the indictment is based partly on that Comey testimony which was no billed. It's, it's. I can't, I just, I don't even know what to tell you about that. But the entire document was then marked as though the grand jury had declined to return an indictment on all counts. Meanwhile, someone, question mark, conveyed news of the no bill on count one to Halligan or her office. And it turns out we'll find out in a filing later that that was Cleary. Remember, Clery was supposed to take over for Halligan.
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B
Yes.
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A
Halligan's office then drafted a new two count indictment that removed count one from the original indictment presented to the grand jury. But that second indictment, it was never presented to or voted on by the grand jury. Instead, the foreperson and Halligan signed it and then it was handed up in open court. That's when it happened. The result is that the operative indictment in this Comey case is one that the grand jury never actually voted on.
- [21:52]
B
After hearing that in the hearing in which the government admitted they never presented the final indictment to the full grand jury, Nachmanoff asked for a final briefing And Comey's brief opens like this. The government's misconduct and its quest to indict Mr. Comey shocks the conscience. The government conducted a warrantless search of privileged materials that no reasonable agent or prosecutor would conduct. It used those materials to present this case to the grand jury, and in doing so, it magnified its violation of Mr. Comey's rights. It misstated basic principles of constitutional law to influence the grand jury, and it appears not to have presented any of the significant exculpatory evidence in this case. What is more, the government has now conceded that it did not even present the operative indictment to the grand jury, meaning no indictment was returned before the statute of limitations expired. And adding to the irremediable flaws permeating this process, the Attorney General twice ratified the defective purported indictment through a post hoc review that is legally incapable of rescuing this case. The record contains multiple particularized factual bases to conclude that grounds may exist to dismiss the indictment based on the government's misconduct before the grand jury and overcome the presumption of grand jury secrecy. Pursuant to the Federal Rule of Criminal Procedure 6e3e2, disclosure of the grand jury proceedings is warranted.
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A
Yeah, and that's just the introductory paragraph. There's a footnote that says the absence of a valid charging instrument will be the basis of a forthcoming motion to dismiss. Now, I bet it will. There seems to be some confusion with Lindsey Halligan and the government about what a charging instrument, a charging document is. I feel like they think it's some intangible, abstract feeling about what the grand jury thinks rather than an actual piece of paper shown to them that they vote on and that is signed.
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B
Right.
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A
Because you actually do have to have a charging instrument, a document, signed and voted on by at least 12 grand jurors.
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B
Not only do you have to have it, you have to physically bring it to the grand jury, you have to put it down on the table. You read the entire indictment word for word to the grand jury, you let them ask questions about it it, and then you leave them to deliberate. And when that deliberation is done, the fore person is elected foreperson by the other grand jurors, signs the indictment on their behalf. There's a very physical, tangible quality to this. And the reason is like the grand jurors need to know exactly what they're voting on. These things are so basic. It's stunning to know that any attorney would have had the poor judgment to go down this road. But apparently this attorney did.
- [25:01]
A
Yeah, and Siebert wouldn't. And he got fired for it. And he apparently wrote a declination memo. That was something else that came out in the hearing where the judge said, well, is there. Where's this declination memo? And Mr. Lemons, one of the AUSAs that Lindsey Halligan had to borrow from a different state because no one else would stand next to her from the Eastern District of Virginia, said, well, I've been told by the deputy Attorney general, Todd Blanche, not to even tell you whether that memo exists.
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B
I mean, give Lemon some credit for saying the quiet part out loud.
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A
I mean, and he goes, but if it does, it might be subject to deliberative process privilege or work product privilege. And this reminds me of the Bill Barr memo declining to to charge Donald Trump with obstruction of justice after the Mueller thing. They tried to keep that hidden for deliberative process and work product privilege, but Judge Barrel House said, no, you can't, no, and released it. That's how we know that it exists in the first place. And those are the kinds of things that can kill a case. Right. Which may be one of many reasons that Joe Biden's Department of Justice didn't bring obstruction charges, because a declination memo existed saying that they wouldn't charge Donald Trump with obstruction. So remember I told you to put a pin in the fact that the grand jury voted no on the original indictment, had three counts. And count one that they no billed was about Comey talking about the Clinton plan. When he said, I don't know what you're talking about. When Ted Cruz was asking him about this. And the Clinton plan was like one email or a series of emails. John Durham investigated and decided not to bring charges on because it turns out it was fabricated by Russian agents. And the Clinton plan email said that Hillary Clinton was planning to tie Donald Trump to Russia, that it's all a hoax. So that first count that they no build about the Clinton plan is the basis for dismissing the final count, according to Comey, because apparently, remember the final count obstructing a congressional investigation. 1505. Yep. They didn't say in their indictment what investigations Comey was obstructing or which lies he told that obstructed the investigation. But they have subsequently found out through meet and confers that they are talking about this Clinton plan lie and the lie that he's told about, you know, the alleged lie that he told about give authorizing somebody from the FBI to release information to the press. So that count only has two legs and one of them was no build.
- [27:52]
B
That's right. That's right. Yeah. So. So these false statements, as you said, one of the false things, one we've been focusing on the most, is the one where Comey says to Ted Cruz, I stand by my 2017 testimony. The false statement that was apparently in count one was Comey's comment in that same hearing in 2017 when they asked him about a Ciol A that was allegedly sent to the FBI. I think in. In September of 2016, that laid out, that summarized this thing is now referred to as the Clinton plan. And when they asked him about it under oath, Comey said, I don't. I didn't ever receive that or I don't remember seeing it. So that was the alleged misstatement in count one.
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A
But they found out that wasn't a misstatement because what he had seen was, of course, letter from Ratcliffe.
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B
Right.
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A
Saying this coil exists, but he never actually saw the coil, which is likely.
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B
Why the grand jury no billed on that count, because it's just not clear at all. So now they're. They're using that alleged false statement, which was Nobel by the grand jury, as the basis of his obstruction count in count three.
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A
Yeah. And I remember talking to you being like, why are they now trying to shoehorn this Clinton plan thing back after, you know, pat back into these charges after. After the grand jury already know build it. This is why. It's.
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B
Because it's the only investigation. Right. It's the only thing they can say they can point to as a current investigation.
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A
Yeah.
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B
Anyway, I mean, I. That. That would be my guess. I can't. I don't want to pretend that I'm in the minds of these people, because I can't. I don't. I don't think the way that they do. But. Yeah. Okay.
- [29:40]
A
And just like Judge Fitzpat, we assumed that they certainly must have presented that second indictment and that they were just hiding that tape. No, they never did. Because we were. Like, that never occurred to us or Judge Fitzpatrick that they shouldn't represent. It's just crazy. Wow.
- [30:03]
B
Okay, so this gets us to the breaking news on Friday afternoon. Comey's filed that motion to dismiss based on grand jury violations. And as promised, in that footnote that you just mentioned, Alison, it says this motion focuses on fundamental errors in the grand jury process itself. Those grand jury errors warrant dismissal twice over.
- [30:27]
A
First, now, I want to say before you go on, that as you read this, Andy, it's important to note that when Comey filed this, he still doesn't have the grand jury materials.
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B
Yeah.
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A
He's just going by what, what the government's admitted in that hearing and in subsequent briefings, which is crazy.
- [30:47]
B
Okay. They say, first the case should be dismissed because the grand jury never approved the operative indictment. Quote, a grand jury may indict only if at least 12 jurors concur. That is Federal Rule of Criminal Procedure 6F. Here. The grand jury voted to reject the only indictment that the government presented to it. Instead of presenting the grand jury with a revised indictment, Ms. Halligan signed a new two count indictment that the grand jury had never seen or voted on because at least 12 jurors did not, quote, approve the actual indictment. There is no valid indictment of Mr. Comey.
- [31:27]
A
Yeah, I can't imagine being in the courtroom being Pat Fitzgerald, not the judge, but Comey's attorney, and Dreeben, who is also there, and hearing the government say that they never presented. That's that redraft to the grand jury. Can you imagine? Like, like you have to keep it all inside your excitement when you're in the courtroom. But. Oh, man.
- [31:50]
B
But I'm sorry, I mean. Oh, to have cameras in the federal courtrooms because you would have seen those guys sitting behind the defense table just look at each other like, what did she just say that? Am I having a stroke? Or did I hear her just say I never presented the indictment to the grand jury?
- [32:07]
A
And that's when they've started, you know, these briefings and started writing like, that's it. That's the whole ball of wax. We can talk about all this other stuff too, if you'd like. All the other 11 things that you originally found wrong with this. But the fact that there's no charging document here, there's no indictment. There's no indictment. It doesn't exist. The limit does not exist.
- [32:30]
B
Right.
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A
So his motion goes on to say, the government's late breaking notice, correcting the record cannot save the putative indictment. So the late breaking notice, correcting the record, I should tell you, is that the doj, when Nachmanov asked for briefs, the DOJ filed a response saying, oh, actually, your honor, we lied 17 times in that hearing that you just had. We actually did present the, the second redraft of an indictment to the grand jury. And our proof of that, even though it's not in the tapes, and even though if it were in the tapes, we should have handed that over because you ordered us to. And if it's not in the tapes, we violated another rule because we did stuff without a court reporter there. But, but look, here's what's important. Here's some testimony in the hearing of the indictment with the magistrate judge on September 25, where the foreperson was asked if the thing he just signed with Lindsey Halligan was voted on by the grand jury. And he said yes. But he may have been thinking, yeah, they voted on it earlier.
- [33:40]
B
Yeah, voted it down.
- [33:41]
A
Right.
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B
You can't. There's the grand jury four person is not going to save her here. That's just not possible. It's not the grand jury four person's responsibility. It's her responsibility.
- [33:56]
A
And.
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B
And the judge lays out the timeline earlier in maybe this was. Judge Fitzpatrick laid out the timeline in his memorandum and basically showed that there was only eight minutes of that gap in time when from when she found out the first one got voted down and when she signed the second one. This is not even enough time to go back and represent it and have them vote on. But in any. The motion goes on to say second, dismissal is independently warranted because of the government's misconduct before the grand jury. Among other things, the government executed search warrants in a manner that violated the Fourth Amendment and relied on the information obtained from those searches as a part of its grand jury presentation, relied on attorney client privileged information as a part of its grand jury presentation, and made serious misstatements of the law to the grand jurors. The government has produced the transcript and the audio recording of the presentment to the court in connection with the motion practice, but the defense has not yet viewed the grand jury materials. Nonetheless, the proceedings before Judge Fitzpatrick and the government's representations to the defense and this court establish four important facts about the presentment.
- [35:16]
A
Yeah. First, in attempting to establish probable cause for count three, Ms. Halligan relied exclusively on the alleged false statements that served as the basis for counts one and two. Second, as Judge Fitzpatrick found, Ms. Halligan suggested to the grand jury that Mr. Comey doesn't have a Fifth Amendment right not to testify at trial. Third, as Judge Fitzpatrick found Ms. Halligan, quote, suggested to the grand jury they did not have to rely on only 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. And fourth, as Judge Fitzpatrick found materials retained and searched in violation of the Fourth Amendment, which may have included privileged communications between Comey and Dan Richmond, formed the cornerstone of the government's grand jury presentation.
- [36:12]
B
Next, they explained the issues surrounding the missing 139 minutes. After the close of deliberations, the grand jury foreperson informed the U.S. attorney's Office Grand Jury coordinator that the grand jury had voted to reject count one, but had voted to approve counts two and three. The grand jury coordinator then informed someone from the U.S. attorney's office about that result. According to Ms. Halligan, then First Assistant U.S. attorney Maggie Cleary informed her of the grand jury's coordinator's account. At about 6:40pm Ms. Halligan proceeded to the courtroom for the return of the indictment in front of the magistrate judge. At some point before appearing in front of Judge Vala, Ms. Halligan and the foreperson signed the last page of the report of a grand jury's failure to concur in an indictment. And someone from the U.S. attorney's office printed a new indictment that included only two counts. Ms. Halligan and the foreperson signed the new indictment. But there is no record of the grand jury seeing the new indictment, let alone voting on it.
- [37:20]
A
Man On November 20, the government filed notice to correct the record regarding statements during the hearing it held on November 19, 2025. This is where the government's like, oops, we didn't mean that the 17 times that we said that we never showed it to the grand jury. Contrary to the government's prior statements, it now claims, quote, the grand jury voted on and true billed the two count indictment. But its only support for that claim is the transcript of the four person's exchange with Judge Vala during the return proceeding. Specifically, the four person responds yes to the judge's question of whether the grand jury voted on the one that has the two counts. That response was ambiguous. It could have meant that the grand jury voted to approve a new two count indictment. Or it could have meant that the grand jury voted to approve counts two and three of the original indictment.
- [38:14]
B
This case calls out for a remedy that will deter the government's egregious conduct. The President initiated this prosecution because of his vindictive animus towards Mr. Comey, intent on retaliating against a perceived political enemy. Before the statute of limitations expired, the President directed the appointment of a White House aide with no prosecutorial experience as an interim U.S. attorney. Within three days, Ms. Halligan rushed into the grand jury without the participation of any other prosecutor in the U.S. attorney's office to seek an indictment of Mr. Comey. Her presentation to the grand jury relied on unconstitutionally obtained information and potentially privileged material, some of which had been provided to Agent 3 before his testimony and featured multiple serious misstatements of law. The grand jury then rejected the indictment. Yet rather than presenting a new indictment to the grand jury, Ms. Halligan signed a new two count indictment that the grand jury had never seen or voted on. After receiving news of the indictment, the President rejoiced and congratulated Ms. Halligan for successfully carrying out his bidding. If a dismissal is without prejudice, the government will inevitably try to prosecute Mr. Comey again. The only way to deter the government from continuing to pursue this deeply flawed effort to prosecute Mr. Comey and is to dismiss with prejudice. That strong remedy will also send a signal to the President and the Department of Justice that the current pattern of politically motivated prosecutions violates bedrock American constitutional principles. The judiciary is a vital bulwark against this administration's intolerable abuse of executive power. It shall fulfill that role by dismissing this profoundly unjust and unconstitutional prosecution with prejudice.
- [40:05]
A
Huh. This is going nowhere fast. I love that, I love that they're fighting really hard to get the grand jury material, but then they file this and they're like, we don't have it yet, but we don't need it. After what you guys said in that hearing on Wednesday, we, we don't need the grand jury material. There's enough already on the record to dismiss this thing 14 different ways.
- [40:29]
B
You're not talking here about just two sides arguing, you know, opposite sides of the same point. These are actual judicial findings. The trier, the finder of fact. I should say in these motions, whether it's Judge Fitzpatrick or Judge Nachmanoff, they have reviewed what the sides put before them and they drew these conclusions. 11 fatal errors. You know, the timeline that doesn't add up, the comments, the use of, like, privileged and uncommon constitutional material violative of the Fourth Amendment as the, quote, unquote, cornerstone of the government's presentation to the grand jury. I mean, you don't have to drag this out any longer.
- [41:13]
A
I want to, though. I would like to drag it out. I would like to drag this out another month or two through the holidays. So that, that, Lindsey Halligan, is a really unpleasant holiday season. I would like this to be a long, slow death by a thousand paper cuts. I want to know what else. I want to know what's in those grand jury materials, which is why I, you know, I, I'm hoping that. I know we've, we've got a picture of it because of what the judge said. I would love for there to be a motion to remove those redaction bars about what she said to the, to the grand jury. I, you know, now obviously this isn't going to trial, which, which gives me a sad. Because I would really like to see Fitzpatrick go up against Lindsey Halligan and her two folks from North Carolina against on this. But I'm. I'm really, really glad that the Department of Justice demanded to know why what was so wrong with our grand jury presentation that it warrants us handing the materials over to Jim Comey. I'm very glad that they demanded that, because we wouldn't have known. We might not have known otherwise. We might have gotten a dismissal from Judge Curry before any of this information came out, before we found out that there was no warrant, before we found out that she violated Fourth and Fifth Amendment constitutional rights against illegal search and seizure and ability to deplete the Fifth Amendment. Like, thank you, Department of Justice, for crying about this and demanding that the.
- [42:38]
B
Judge explain why that objection or appeal of that order literally flipped the script. Now we're talking about, like, we're never going to hear Judge Curry's decision on whether or not the appointment was illegal. This whole thing could get dumped before we ever hear that issue resolved. Whereas it used to be when we went into this, it was like, well, Judge Curry is going to come in and throw this out on an illegal appointment, and we're never going to get to hear about what happened in front of the grand jury. The whole thing went the other way on us.
- [43:08]
A
Well, though I will say somewhere I'm remembering in a footnote in Comey's motion to dismiss based on grand jury malfeasance. He says in footnote one, Mr. Comey respectfully submits that the court can and should consider this motion along with Mr. Comey's other dispositive motions. Those motions are fully briefed, and the government has filed its notice concerning Gaither versus the United States. The defense requests that the court direct the government to file its response to this motion by November 24, 2025, if there is a response. So it seems like Comey's like, hey, could you also decide our other dispositive motions? And that's what you and I were talking about when this very first started going down. I'm like, if somebody throws this whole thing out because Lindsey Halligan was unlawfully appointed, are we not going to get to know what the judge thinks about vindictive and selective prosecution? Are we not going to get to know what the judge thinks about the Bronston literal truth defense? That seems like Comey is saying, could rule on all of them for me, please.
- [44:17]
B
He can ask, but that doesn't mean it'll happen. It doesn't matter. I mean, it'll happen, but the court.
- [44:24]
A
Might also want us to know. Want us to know.
- [44:26]
B
Yeah. Well, look, I mean, the illegal appointment issue that Judge Curry is handling, that has resonance, will have resonance in all these other, you know, not, I'll say, non traditional appointments. Alina Haba, who's the guy in upstate New York? I always forget his name.
- [44:43]
A
Yeah, I can't remember his name. But there was also Sigil Chatta and I think. Yes. Sali. In Los Angeles.
- [44:49]
B
Right, In Los Angeles. Yeah. So that's an important. That'll be another important ruling.
- [44:54]
A
And also it could impact Letitia James's case, which was signed only by Lindsay Halligan.
- [45:00]
B
That's right. That's right.
- [45:02]
A
All right, everybody, I know we're already 45 minutes into this episode, but we still have a couple of things to cover. We just have to take a quick break. Stick around. We'll be right back. Hey, everybody, welcome back. In other Department of Justice news this week, the ball is now in Pamela Joe Bondi's court. With regard to the Epstein files. The House nearly unanimously passed the Epstein Files Transparency act with only Rep. Clay Higgins voting no. So I don't know about you, but I'll be looking for some Clay Higgins shaped redaction bars when the Epstein files come out. But he voted no. But the bill passed with unanimous consent in the Senate. Actually, before it got there, they set up a rule where they just said, once it gets here, it automatically goes to the president's desk. News outlets report that President Trump has signed the bill and now the attorney general has 30 days. It's actually down to about 26 days by the time you listen to this with which to comply with this new law.
- [46:06]
B
In a press conference, when asked what she will withhold from the release based on an open and ongoing investigation announced by Trump into a handful of Democrats that appear in the files or what she'll withhold based on national security information, the attorney General repeatedly responded with, quote, we will follow the law.
- [46:26]
A
Oh, for once, yes. Now you're.
- [46:30]
B
The fact that you have to say that is just kind of sad. Like, we don't expect you to do that anymore. So it's notable that you say you're going to here. What she did not say was what law. She was referring to any of the many laws you could rely upon to hold back information or the law that just got passed saying, put it out there.
- [46:48]
A
Yeah. Mike Johnson was hinting at the fact that one of the statutes referenced in the Epstein files bill about what the definition of child sexual assault material is, isn't actually a criminal A great definition of it. Like they have all these weird little legal loopholes that they're trying to jump through. But at one point she was also asked why they opened an investigation into uncharged third parties when they put out a statement in July saying, we've reviewed all the files and there's no evidence to predicate opening investigation into uncharged third parties. And she said that there was new. New information. New information. We have new information that has come to light, you know, since July, I guess, is what she said. So there's actually a lot of work to do in those 30 days because if she wants to redact anything, she has to explain the redactions. If she wants to withhold anything due to national security information, she has to explain that. If she has to redact anything that because it's classified, she has to give a summary of what she redacted. Like, there's a lot of work to do if she wants to withhold or redact any of this stuff. And this is, I guarantee you this will trigger a lawsuit from Congress about what wasn't in the files, what she withheld, what she redacted, and that will end up before the Supreme Court. But Andy, this reminds me of the lawsuit filed about the redactions for the Mueller report and how judge was it Reggie Walton, I think so, Found that Bill Barr lacked candor when he was on his three week tour about discussing the findings and mischaracterized the findings of the Mueller and report and that he inappropriately redacted. He over redacted this report to downplay Russia's role in the 2016 election. And that is how we ended up getting the unredacted Mueller report. It's been out. Some people still email me, Andy, like, when are we going to see the unredacted Mueller report? I'm like, I'm like middle of 2020. That's when we got it. But that's because it was found that the judge got it all in camera reviewed what was behind the redaction bars and made a determination that it was over redacted or inappropriately redacted. So even if the Supreme Court is a bunch of jerks, a lower court will probably tell us whether the redactions and withholdings under this new law were appropriate or not. We might not know what they are and what's behind them.
- [49:08]
B
Put some of it to weigh in.
- [49:09]
A
But we might learn that she overplayed her hand on redactions and withholdings.
- [49:14]
B
In other Justice Department news this week from NBC the senior military lawyer for the Combatant Command overseeing lethal strikes on alleged drug smuggling boats near Venezuela disagreed with the Trump administration's position that the operations are lawful, and his views were sidelined, according to six sources with knowledge of the legal advice. The lawyer, who serves as the senior Judge Advocate General, or JAG in military parlance at U.S. southern Command in Miami, raised his legal concerns in August before the strikes began in September, according to two senior U.S. officials, two senior congressional aides, and two former senior U.S. officials.
- [49:58]
A
Yep. But his opinion was ultimately overruled by more senior government officials, including officials at the Justice Department's Office of Legal Counsel. So when we talked about that memo that was at the olc, that was written up. That's what this is. And that overrode what this JAG lawyer thought. Now, other jags and military lawyers at various levels of seniority weighed in on the boat strikes as well. It's unclear what each of their opinions were, but some of the military lawyers, including civilians and those in uniform, expressed concerns to senior officials in their commands and at the Defense Department about the legality of these strikes. Now, the JAG at Southern Command specifically expressed concern that the strikes against people on boats in the Caribbean Sea and the eastern Pacific Ocean, whom administration officials call narco terrorists, could amount to extrajudicial killings. That's according to six sources, and therefore legally expose service members involved in the operations.
- [50:54]
B
The opinion of the top lawyer for the command overseeing a military operation is typically critical to whether or not the operation moves forward. While higher officials can overrule such lawyers, it is rare for operations to move forward without incorporating their advice. The opinion of the Southern Command jag, which has not been previously reported, adds a new dimension to concerns that lawmakers, retired military officers, and legal experts have raised about the administration's legal justification for striking alleged drug boats. Those concerns have centered on questions about whether the strikes violate international and US Law.
- [51:31]
A
Well, if Southern Command JAG says they do, then they probably do. That's.
- [51:36]
B
I mean, and to be clear, we've been doing this work out of Southern Command for decades. Drug boats have been interdicted in those waters time and time and time again. And the way that work was always done was if we had suspicion that there's, you know, narcotics on board, we would stop the vessels, board them, search them, and if there was drugs there, we'd arrest everybody on board. We did not just kill people with drone strikes, not even knowing who was there or how much was was on the craft. So, yeah, this guy has a long history likely of operations conducted in a very different way to draw upon. And I'm sure. Well, I shouldn't say I'm sure. My guess is he's looking at the way this administration is approaching this issue, and he's like, oh, my God, Doug, this is very, very different and very possibly illegal.
- [52:31]
A
Yeah. At the very least, should we. Can we hang back a second and review it anyway? All right, everybody, we do have one more news story. It's about the old lawsuit, the old RICO lawsuit. You were a party of that lawsuit, my friend.
- [52:50]
B
Yes, ma'. Am. It certainly was.
- [52:52]
A
Yes. Lucky you being party to all these different things going on. I don't envy you. Let's say that. But Donald Trump is trying to revive it. We're going to talk about that and see if we can squeeze in a listener question or two. But we got to take one last quick break. Stick around. We'll be right back.
- [53:17]
B
Welcome back. Okay. Way back In March of 2022, Trump filed a sweeping RICO lawsuit against Hillary Clinton, the Democratic National Committee and others, alleging that they maliciously conspired to weave a false narrative that Trump was colluding with a hostile foreign sovereignty, Russia, to try to rig the 2016 election. Now, the other defendants in that case were many and really wide scope. Perkins Coie, the law firm Michael Sussman, W. Wasserman Schultz, Charles Halliday Dolan, Jake Sullivan, John Podesta, Robert Mook, Philippe Rines, Fusion gps, Glenn Simpson. The list goes on and on and on. And of course, includes Jim Comey, Peter Strzok, Lisa Page, Kevin Kleinsmith, and a gentleman you know as Andrew McCabe.
- [54:07]
A
Yep, yep. Mark Elias was in there. Chris Steele, tons, tons of people.
- [54:12]
B
Yep.
- [54:12]
A
So he filed that in Judge Cannon's district hoping to get her, but instead he end up with Judge Middlebrooks, who's a Clinton appointee. And in September, six months after Trump filed the suit, Middlebrooks dismissed it, saying most of plaintiff's claims are not only unsupported by any legal authority, but plainly foreclosed by binding precedent. Quote, what Trump's lawsuit lacks in substance and legal support, it seeks to substitute with length, hyperbole and the settling of scores and grievances. So he dismissed that scathing, like, hundred plus page ruling. Then in November, September, two months later, Middlebrooks wrote another scathing order in Florida federal court suggesting Trump's lawyer, lawyers in this case had undermined the rule of law by pushing a political narrative in court without factual basis or any cognizable legal theory. And additional sanctions may be Appropriate. And then in January, a couple months later, he hit Trump and alina Haba with $1 million in additional sanctions to cover the defendant's legal fees.
- [55:14]
B
This past Tuesday, Trump urged a panel of 11th Circuit judges to revive his racketeering lawsuit. Courthouse News writes Trump blasted Middlebrooks in appellate briefs accusing him of bias and demanding recusal for, quote, apparent antagonism.
- [55:30]
A
What does that mean?
- [55:31]
B
I'm not sure what that means. I'm glad I wasn't the only one. During Tuesday's oral arguments, attorney Richard C. Clue zeroed in on the judge's dismissal of the complaint as a shotgun pleading. But Chief Judge William Pryor, an appointee of President George W. Bush, wasn't buying it. Quote, I can read the complaint. It's a classic shotgun pleading. Prior shot back. Quote, it incorporates hundreds of paragraphs into succeeding counts.
- [56:01]
A
Yep. And Politico wrote that an attorney for Trump, that Clue guy, Richard Clue, urged the panel to conclude the lawsuit filed in 2022 was not doomed by statute of limitations concerns. He said Congress provided for extending the filing period under certain conditions and that some serving someone serving as president, like Trump was from 2017 to 2020, 2021, should be allowed equitable extra time.
- [56:27]
B
Of course.
- [56:29]
A
So Clue also argued that the participants in the alleged conspiracy took steps to cover their tracks, apparently referring to the Federal Election Commission's conclusion that the DNC and Clinton's campaign misreported expenses related to the dossier. That's the Chris Steele dossier. Okay. In a scathing 2023 ruling, Politico rights Florida based U.S. district Judge Don Middlebrooks called the Trump lawsuit a hodgepodge of disconnected, often immaterial events followed by an implausible conclusion. The end.
- [56:58]
B
I think that's how I would describe the whole administration.
- [57:00]
A
Yeah. Right. So we'll see. I don't think that the 11th Circuit is going to overturn Middlebrooks here. They might maybe say that the sanctions fine is excessive. Maybe. And bring that down a little bit, but I think that's been paid already. I'm not sure.
- [57:16]
B
Yeah, I can't see them wiping this thing out entirely. But you're right, they could still. I guess you could get a refund if they knock the fine down a little bit. But I don't see this thing coming back from the dead.
- [57:30]
A
No, me neither. All right, I think we have time for one quick question. Sorry. We will do another full questions episode at some point here because I know we're taking up so much time with all of the stuff that's coming out in the news. But what do we have this week, Andy?
- [57:42]
B
So many good questions. I mean, it was really tough to get through them all. There was just such a massive volume. But a lot of them hit on the same theme. So that's why I picked this one out. It's what I try to do. Usually this one comes to us from Andy in Virginia, and I'm just going to leave it at that. He named a city, but I'd prefer to not name that city. But thank you, Andy. Andy says thank you both for always helping make some sense out of the nonsense from this administration. In the indictment of James Comey, may defense attorney Michael Dreeben seek to obtain a statement or declaration from Eric Siebert regarding his earlier decision not to pursue charges, including clarification of the evidentiary or credibility concerns that informed that determination for purposes of resolving any ambiguity relevant to the current proceedings? So that's a good question, Andy. And as I said, many people asked about some version of this same thing. Could Siebert testify? Can he be subpoenaed? Could he be subpoenaed to testify in front of the House Oversight Committee? All kinds of different things. One of the points that we went over earlier in the government's response to Comey's motions in the case you heard, I think it was Mr. Lemons, the attorney from North Carolina who is standing in to try to captain this sinking ship on behalf of Lindsey Halligan. He said that if there was a memo, they would likely claim deliberative privilege or work product privilege. And I think that's the same principle that the government would use to prohibit Eric Siebert from ever testifying or providing an affidavit or any kind of statement that could be used in this case in the event it ever goes to trial, the unlikely event it ever goes to trial. Now, whether or not the government would win on that defense, I don't know. I think it's possible. This case, there's nothing normal about this case. And it is possible that the. That the judge would determine it relevant for the jury to hear why a professional prosecutor in charge of that office, in charge of this investigation, literally a week before it was indicted, determined that it could not be indicted. So that's one that we're going to have to wait and see. But the government will definitely fight it tooth and nail.
- [60:07]
A
Yeah. And I think that even if there is a finding of deliberative process privilege or work product privilege, just knowing that there is a declination memo and that Siebert failed to bring charges, which we know to be true. I think if you get to the point where you need to make that argument, I don't think we're even going to get there, because all of these other 76 things that are wrong with this indictment, we'll probably get it dismissed before we reach that. But just the fact that it exists now, because, you know, Mr. Lemons was like, I'm not allowed to confirm or deny that it exists because I was told that to not do that, which means it totally exists. But, you know, I think that they should be able to. That would not be covered by privilege. The memo itself might, but the fact that it exists would not. So even if they lost the battle on releasing the memo itself, they would not lose the battle on being able to know whether a declination memo exists.
- [61:09]
B
And this would no doubt be the subject of a pretrial motion, like whether they could have the memo, whether they could use the memo at trial, whether they could have access to cbert, whether they could force CBERT to testify, whether they can even tell the jury that such a memo exists. Like, there's all kinds of layers there. And I think it's likely that the judge would not throw them all out under some specious claim of work product privilege or deliberative privilege, neither of which are nearly as powerful as something like attorney client privilege.
- [61:39]
A
Those.
- [61:40]
B
Those other privileges, they do get pierced with some regularity. So in any case, I think. I think they get at least the reference. The jury would find out that. That it existed, and they might very well get more than that as well.
- [61:55]
A
Yeah. Well, thank you for that. That's a really good question. I do love pondering these questions, even though they're probably going to end up being moot, because this whole thing will be dism. For some other reason. But it's. It's always a fun thought exercise. So we really, really appreciate your questions. Please send them to us by clicking on the link in the show notes. And that is our show for today. I. I am surprised that while we sat here, recorded that some. That this case wasn't dismissed. Let me just check. Let me just check the docket to make sure.
- [62:27]
B
I'm going to check the order of dismissal. Minute order checking docket.
- [62:32]
A
Right. Just to see Amended motion to dismiss based on. Okay, no, it's just an amended motion there. Okay. What did they amend now? Now I'm curious. I'm just going to look to see if it's still redacted. Yes. The terrible things that she said to the grand jury were still redacted. I wanted to make sure that the amended motion to dismiss didn't include those what was under those redaction bars. And it does not. So we'll find that out. And a bunch more for next week's episode of Unjustified. Thank you so much for listening. Thank you for your questions. Any final thoughts?
- [63:03]
B
No, just thanks for the questions. Thanks for hanging in there with us. This was a kind of a wild and woolly show. We're reacting to stuff like we're finding out literally like minutes before we connected to record. But yeah, this is what it takes to, to keep you up to speed. And that's what we're here to do. So thanks for riding with us.
- [63:20]
A
All right, everybody, we'll see you next week on Unjustified. I'm Alison Gill.
- [63:23]
B
And I'm Andy McCabe.
- [63:25]
A
Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joelle Reader at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds and the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and justice. For more information, please visit mswmedia.com.