A Clinton-appointed federal judge in Washington has stepped into the James Comey saga with an order that effectively tells the FBI to wipe a key evidentiary trail tied to the former director’s obstruction case, and to do it quickly. The move drops the Justice Department into a separation-of-powers storm at the same time it is trying to salvage its prosecution of the man who helped ignite the Trump-Russia hoax.
Former FBI Director James Comey was indicted in September on charges of making false statements to Congress and obstructing a congressional proceeding, stemming from his 2020 testimony about Operation Crossfire Hurricane. The indictment alleged that Comey lied when he denied authorizing anyone at the FBI to act as an anonymous source for media reports damaging to Donald Trump, and that he used Columbia Law Professor Daniel Richman as an outside conduit to leak material while Richman simultaneously worked as a government contractor. Emails between the two are critical to the case against Comey.
U.S. District Judge Cameron McGowan Currie, a Bill Clinton appointee, dismissed the indictments against Comey and New York Attorney General Letitia James last month, ruling that the appointment of Interim U.S. Attorney Lindsey Halligan, who pursued the charges, was unconstitutional, and thus the indictments were invalid.
Six years ago, a warrant approved by Judge James Boasberg allowed the FBI to seize Richman’s devices.
Today, another Clinton-appointed judge, Colleen Kollar-Kotelly, has ordered the FBI to destroy the emails by 4 p.m. on Monday. According to Michael R. Davis, the founder and president of the Article III Project, the ruling “threatens the separation of powers essential to the Republic, and either the D.C. Circuit or Supreme Court must intervene immediately.
Richman, who is not charged in the case and has no standing as a defendant, filed a motion under Federal Rule of Criminal Procedure 41(g) to reclaim those emails, arguing that the government violated his Fourth Amendment rights. Rule 41(g) typically allows individuals to ask a court to return property obtained in an unlawful search.
Still, its use here departs from legal norms because Richman is not the target of the prosecution, and Comey himself lacks standing to challenge the warrant executed on Richman’s accounts. Judge Kollar-Kotelly granted the motion and, on December 13, ordered the Justice Department to return all data seized from Richman, concluding that prosecutors handled the material with “callous disregard” for Richman’s rights and had improperly used it to indict Comey. She directed that a copy of the emails be delivered to Biden-appointed Judge Michael Nachmanoff, who is presiding over the Comey case in the Eastern District of Virginia, but even with that copy preserved, the ruling bars the FBI and prosecutors from reviewing these emails as they pursue a new indictment.
“This salvation of a copy of the emails, however, does not lessen the impact of Kollar-Kotelly’s horrible ruling,” explains Davis.
“The FBI and the prosecution will be unable to review them in their efforts to seek a new indictment if Currie’s dismissal ruling survives on appeal.”
The statute-of-limitations law allows the government only six months after an indictment’s dismissal, suspended during the appellate process, to seek a new indictment. The inability to view this evidence would substantially increase the time necessary to seek an indictment. Even if a higher court reverses Currie, the government’s inability to review the emails to use as evidence and prepare for trial would massively hamper its case.
Kollar-Kotelly’s decision raises grave separation-of-powers concerns because it involves a judge outside the criminal case, and outside the district where it is pending, ordering the destruction of evidence that was lawfully obtained.
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