Judge orders Justice Department to return data used to indict James Comey

A federal judge on Friday ordered the Justice Department to return data seized in 2017 from a close friend of former FBI Director James Comey, concluding that the agency violated law professor Daniel Richman’s constitutional rights and improperly used the information to charge Comey.

U.S. District Judge Colleen Kollar-Kotelly sharply criticized Justice Department prosecutors, finding that the data and materials, an image of Richman’s hard drive as well as emails from his iCloud and Columbia University email accounts, had been treated with “total disregard” for Richman’s rights.

The order is another blow to the Justice Department and prosecutors in the Eastern District of Virginia, after U.S. District Judge Cameron Currie ruled last month that former Trump lawyer Lindsey Halligan was not legally appointed as acting U.S. attorney for the Eastern District of Virginia when she single-handedly presented the Comey case to a grand jury.

The Justice Department did not immediately respond to a request for comment Saturday in response to the ruling, nor on whether it would seek new indictments against Comey.

Earlier this week, prosecutors filed a motion in the case, arguing that they needed the information to seek a new indictment against Comey after an initial indictment was dismissed last month because of the ruling on Halligan’s appointment.

The judge ruled that using old documents without obtaining a new warrant to pursue a grand jury indictment against Comey was a “remarkable violation of protocol.”

Kollar-Kotelly began his 46-page memorandum with a harsh critique of the situation:

“When the government violates the Fourth Amendment’s ban on unreasonable searches and seizures by scanning a large portion of a person’s electronic files, retaining those files long after the relevant investigation has concluded, and then examining them without a warrant to obtain evidence against someone else, what remedy is available to the victim of the government’s unlawful intrusion? Rule 41(g) of the Federal Rule of Criminal Procedure provides one such remedy: a court may order the government to return the files to their rightful owner. This case calls for this remedy.

The judge made a concession to the Justice Department, ordering that a copy of all the data in question be kept under seal in federal court in the Eastern District of Virginia, in case prosecutors were able to convince the judges to let them use the documents again.

Richman’s request to recover his material was filed in the U.S. District Court in Washington, DC. Judge Kollar-Kotelly had issued a temporary restraining order blocking prosecutors’ access to Richman’s data and emails last week after his lawyers filed an emergency motion with the Washington DC court.

The use of Richman’s records came to light after Comey was indicted in September for making a false statement to Congress during a Senate hearing in 2020. But that case was thrown out after a federal judge ruled that Halligan, a lawyer with no prior criminal experience, was illegally appointed.

Attorney General Pam Bondi has said the Justice Department will appeal Comey’s case, but that has not yet been done. Judges in the Eastern District of Virginia have expressed frustration that Halligan’s name continues to appear on court documents as U.S. attorney.

In a motion filed earlier this week, prosecutors argued that Richman was trying to protect his friend Comey from further indictment, and admitted that these elements were essential to those efforts.

The Justice Department obtained Richman’s computer files and emails in 2017, when it was investigating Comey after he was fired as FBI director. Comey later told Congress that he gave Richman memos he wrote about his meetings with Trump and asked Richman to share them with a reporter.

After this testimony, Richman authorized the FBI to create an image of all files on his home computer and on an additional hard drive. But the Justice Department kept the records and then used them to prosecute Comey this fall without obtaining a new arrest warrant from a judge.

Other efforts by the Trump administration to pursue political rivals have recently failed. Earlier this week, NBC News reported that a federal jury in Alexandria, Virginia, declined to indict New York Attorney General Letitia James, a recurring Trump political target.

This was the Justice Department’s third attempt to obtain an indictment against James. Last month, a federal judge dismissed mortgage-related charges against James, in addition to separate charges against Comey. The Justice Department also unsuccessfully attempted to obtain a new indictment against New York’s attorney general in a federal court in Norfolk, Virginia, earlier this month.