FILE PHOTO: Former FBI Director James Comey testified in front of the Senate Intelligence Committee in the Senate Hart building on Capitol Hill, on Thursday, June 8, 2017.
Cheriss May | Nurphoto | Getty Images
A federal magistrate judge on Monday raised the possibility that the indictment against former FBI director James Comey on charges of lying to Congress — which was obtained at the behest of President Donald Trump — could soon be dismissed because of potential “misconduct” by the prosecution.
The suggestion by Judge William Fitzpatrick came as he ordered the Department of Justice to release all grand jury material related to Comey’s case to him by the end of the day.
Comey’s defense lawyers had requested that material in order to move that the indictment be tossed based on alleged irregularities by interim U.S. Attorney Lindsey Halligan when she presented the case to the grand jury and asked it to charge him.
Fitzpatrick said Halligan had potentially violated court orders and Comey’s Fourth Amendment rights, which “establish a reasonable basis to question whether the government’s conduct was willful or in reckless disregard of the law.”
“The facts set forth herein and the particularized findings of the Court establish that ‘ground[s] may exist to dismiss the indictment because of a matter that occurred before the grand jury,'” Fitzpatrick wrote in his ruling in U.S. District Court for the Eastern District of Virginia.
The judge said he “is finding that the government’s actions in this case — whether purposeful, reckless or negligent — raise genuine issues of misconduct.”
The judge said that he recognized that ordering the DOJ to release to Comey all material related to the grand jury that indicted him, as well as an audio recording of the proceedings, is “an extraordinary remedy.”
“But given the factually based challenges the defense has raised to the government’s conduct and the prospect that government misconduct may have tainted the grand jury proceedings, disclosure of grand jury materials under these unique circumstances is necessary to fully protect the rights of the accused,” Fitzpatrick wrote.
The judge noted that the only witness to testify before the grand jury, who was an FBI agent, was notified by another agent shortly before he testified that evidence obtained in the investigation of Comey might have included material protected by attorney-client privilege.
Fitzpatrick also said he had identified two statements by Halligan made to the grand jury “that on their face appear to be fundamental misstatements of the law that could compromise the integrity of the grand jury process.”
One of the statements, which the judge called “a fundamental and highly prejudicial misstatement of the law,” suggested to the grand jury that Comey does not have a Fifth Amendment right not to testify at trial.
CNBC has requested comment from Halligan’s office.
Comey was indicted on Sept. 25 in federal court in Alexandria, Virginia, on charges of making a false statement and obstruction, in connection with his testimony to the Senate Judiciary Committee in September 2020.
During that testimony, Comey had denied authorizing another person at the FBI to act as an anonymous source for news reports about an investigation of 2016 Democratic presidential nominee Hillary Clinton and her emails.
Comey, who denies any wrongdoing, was indicted only days after Trump urged Attorney General Pam Bondi to prosecute the former FBI director, who has been a longtime foe of the president.
Halligan was handpicked by Trump to lead the Eastern District of Virginia’s office after her predecessor balked at seeking an indictment of Comey.
Comey’s trial is currently set for Jan. 5.
