How Rookie Mistakes Could Sink the Comey Prosecution
It’s been plain from the start that the Justice Department’s prosecution of James Comey springs from Donald Trump’s desire for payback against a bitter political enemy. Exhibit A: the president’s own September 20, 2025, Truth Social post, stating exactly that. Now it seems that the DOJ has coupled bad motives with straightforward incompetence. When rookie prosecutors take over complicated cases, rookie mistakes happen.
In a blistering ruling issued this week, federal Magistrate Judge Bill Fitzpatrick peeled the bark off the prosecution’s abject mishandling of the Comey grand jury. (The decision is currently being considered by the higher-ranking district judge presiding over the case.) I know Fitzpatrick professionally. Before he took the bench he served for over 20 years at the Justice Department, during which he established himself as the prosecutor’s prosecutor — hypercompetent, measured, decent. And he’s no leftist; Fitzpatrick became the acting U.S. Attorney in New Jersey during Trump’s first presidency.
In contrast to Judge Fitzpatrick, consider our bumbling novice prosecutor, Lindsey Halligan. Days after Trump’s public demand for Comey’s hide, then–U.S. Attorney Erik Siebert — an experienced, Trump-appointed conservative — resigned in part because he doubted the merits of the Comey case. Into the void stepped Halligan, an insurance lawyer who had never touched a criminal prosecution. She had, however, demonstrated absolute political fealty to the president. Halligan had represented Trump personally, and she notably led a White House review of Smithsonian exhibits for “corrosive ideology.”
Remarkably, Halligan’s first-ever grand-jury appearance — on her fourth day in office — was on the Comey case. It went exactly as poorly as you’d expect.
Understand just how hard it is for a prosecutor to screw up so badly in the grand jury that the case itself faces an existential threat. You present your evidence through a friendly FBI agent who worked the case with no defense lawyer present and no judge presiding. You explain the basics of the proposed indictment. You read off some standard, form-based instructions. And you avoid committing flagrant violations of the defendant’s constitutional rights. Easy. To blow up your own indictment at the grand-jury stage is to shank a two-foot putt in mini-golf.
Yet here we are.
Judge Fitzpatrick found, first, that Halligan made “a fundamental and highly prejudicial misstatement of the law” to the grand jury. We don’t know exactly what Halligan said because her quotes are redacted from the ruling (presumably to preserve the secrecy of grand-jury proceedings). But the judge summarizes and describes multiple prosecutorial screwups.
For starters, the newbie prosecutor inexplicably suggested to the grand jury that Comey would have to explain himself on the stand or somehow had an obligation to testify on his own behalf. Anyone who has watched a cop show — You have the right to remain silent and all that Fifth Amendment boilerplate — knows better. That’s either stunning prosecutorial incompetence or it’s malice.
And, according to Judge Fitzpatrick, Halligan “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.” You’ll not be shocked to learn that grand juries can indict based only on the actual case before them and not on some hypothetical, theoretical proof that might or might not exist. (In a Wednesday filing, prosecutors disputed the judge’s characterization of Halligan’s comments.)
Making matters worse, the judge found that Halligan’s mishandling of key evidence “may rise to the level of government misconduct.” A bit of background is necessary here. In a separate investigation back in 2019 and 2020 relating to public leaking by the FBI of information on the Hillary Clinton private-email-server case, the Justice Department obtained search warrants to seize evidence from the electronic devices of a lawyer named Daniel Richman.
Richman is a key player in the current indictment. Halligan’s core allegation appears to be that, when he was FBI director, Comey authorized Richman to leak to the press but then lied about it to Congress. (I say “appears” because the indictment itself is a jumbled mess.) When Halligan presented her case to the grand jury in 2025, the judge found, she “relied heavily” on evidence of communications between Comey and Richman that the Justice Department had obtained through those search warrants back in 2019 and 2020.
That raises two problems. First, prosecutors can’t dig through old files and use whatever evidence they find in any old manner they deem fit. The 2019 and 2020 search warrants were issued in a different case, for a limited purpose, to find evidence of specific crimes. Prosecutors can’t automatically repurpose that evidence in an entirely different legal and investigative setting. Second, some of the exchanges between Comey and Richman (who represented Comey at the time) appear to contain privileged attorney-client communications. Undaunted by this minor constitutional inconvenience, Halligan apparently forged ahead and used those potentially privileged communications as part of her case to indict Comey.
On top of all that, it seems Halligan fumbled the basic logistics of the grand-jury process. The Justice Department initially presented a proposed three-count indictment; the grand jury rejected count one but approved counts two and three. It seems prosecutors then created a new document that eliminated count one (which the grand jury had rejected) and renumbered counts two and three (which the grand jury had accepted) as counts one and two. It’s mostly ministerial except that Halligan never presented the second, revised indictment to the full grand jury but rather had the foreperson and one other grand juror approve it. It’s unclear whether this technical flub will require dismissal, but it’s a misstep any experienced prosecutor would’ve easily avoided in the first place.
This latest barrage of prosecutorial blunders (or worse) now joins other substantial bases for Comey to seek dismissal of the indictment. Given that Trump overly targeted Comey for political payback, the former FBI director already has about as strong a motion for vindictive or selective prosecution as you’ll ever see. And Comey has a reasonable if novel technical claim that Halligan was unconstitutionally appointed in the first place.
The Comey trial is slated to start in just over a month. But given Halligan’s jaw-dropping incompetence, it’s increasingly unlikely this mess ever makes it to a jury at all. When it comes to payback indictments and political operatives playacting as prosecutors, it’s all fun and games until cases fall apart.