Justice Department faces hurdle in seeking case against Comey as judge finds constitutional problems
WASHINGTON– The Justice Department violated the constitutional rights of a close friend of James Comey and must return computer files that prosecutors hoped to use in a possible criminal case against the former FBI director, a federal judge ruled Friday.
The decision by U.S. District Judge Colleen Kollar-Kotelly not only represents a sharp rebuke of the conduct of Justice Department prosecutors, but it also imposes a significant obstacle to the government’s efforts to obtain a new indictment against Comey after the dismissal of an initial indictment last month.
The order concerns computer files and communications that investigators obtained years earlier from Daniel Richman, a Comey friend and law professor at Columbia University, as part of an investigation into a media leak that ended without charges. The Justice Department continued to retain these records and conducted searches this fall, without a new warrant, as it prepared a case accusing Comey of lying to Congress five years ago.
Richman alleged that the Justice Department violated his Fourth Amendment rights by withholding his records and conducting new warrantless searches of the records, prompting Kollar-Kotelly to issue an order last week temporarily barring prosecutors from accessing the records as part of his investigation.
The Justice Department said the request to return the records was just an attempt to prevent further prosecution of Comey, but the judge again sided with Richman in a 46-page order Friday that ordered the Justice Department to return his records.
“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 recourse is available to the victim of the government’s unlawful intrusion? the judge wrote.
One solution, she said, would be to require the government to return the property to its rightful owner.
The judge, however, allowed the Justice Department to file an electronic copy of Richman’s records under seal with the Eastern District of Virginia, where the Comey investigation is based, and suggested that prosecutors could try to access them later with a legal search warrant.
The Justice Department alleges that Comey used Richman to share information with the media about his decision-making during the FBI investigation into Hillary Clinton’s use of a private email server. Prosecutors charged the former FBI director in September with lying to Congress by denying he allowed an associate to serve as an anonymous media source.
That indictment was dismissed last month after a federal judge in Virginia ruled that the prosecutor who brought the case, Lindsey Halligan, was illegally appointed by the Trump administration. But the ruling leaves open the possibility that the government will again try to bring charges against Comey, a longtime foe of President Donald Trump. Comey has pleaded not guilty, denied making a false statement and accused the Justice Department of vindictive prosecution.
The Comey saga has a long history.
In 2017, he testified that he gave Richman a copy of a memo he wrote documenting a conversation he had with Trump and authorized him to share the contents of the note with a reporter. After this testimony, Richman authorized the FBI to create an image, or complete electronic copy, of all files on his computer and on a hard drive connected to that computer.
Then, in 2019 and 2020, the FBI and Justice Department obtained search warrants to obtain Richman’s email accounts and computer files as part of a media leak investigation that concluded without charges.
But Richman said the Justice Department violated his rights by searching his records in September, without a new warrant, as part of an entirely separate investigation.
