Justice Department faces hurdle in seeking case against Comey as judge finds constitutional problems
WASHINGTON (AP) — The Justice Department violated the constitutional rights of James Comey’s close friend and was forced to return to him computer files that prosecutors had hoped to use for a time. Possible criminal case against former FBI directorA federal judge said Friday.
U.S. District Judge Colleen Kollar-Kotelly’s decision represents not only a harsh rebuke of the conduct of Justice Department prosecutors, but also a dramatic setback to the government’s efforts to file a new indictment against Comey after the first indictment was dismissed last month.
The decision relates to computer files and communications. researchers obtained from Daniel Richman many years agoa friend of Comey and a Columbia University law professor, as part of a media leak investigation that ended without any charges. The Justice Department continued to hold and search those files without a new arrest warrant this fall as it prepared a lawsuit accusing Comey of lying to Congress five years ago.
Richman claimed that the Justice Department violated his Fourth Amendment rights by withholding his records and conducting new warrantless searches of files; That led Kollar-Kotelly to issue an order last week temporarily banning prosecutors from accessing the files as part of the investigation.
The Justice Department said the request to return the records was merely an attempt to block a new investigation into Comey, but the judge again sided with Richman in a 46-page order Friday ordering the Justice Department to return his files to him.
“What remedies are available to the victim of the Government’s unlawful intrusion if the Government violates the Fourth Amendment’s prohibition on unreasonable search and seizure by scanning a large portion of a person’s electronic files, preserving those files long after the relevant investigation has concluded, and then scanning those files without a warrant to obtain evidence against another person?” wrote the judge.
One answer, he said, is to demand that the government return the property to its rightful owner.
But the judge allowed the Justice Department to send an electronic copy of Richman’s records under seal to the Eastern District of Virginia, where the Comey investigation is located, and suggested prosecutors could later try to access those records with a lawful search warrant.
The Justice Department alleges Comey used Richman to share information with the media about decisions he made during the FBI’s investigation into Hillary Clinton’s use of a private email server. Prosecutors accused the former FBI director in September of lying to Congress by denying that he authorized an employee to serve as an anonymous source for the media.
That indictment was dismissed last month After a federal judge in Virginia ruled that Lindsey Halligan, the prosecutor who brought the case, was unlawfully appointed by the Trump administration. But the decision left open the possibility that the government would re-file criminal charges against Comey, a longtime foe of President Donald Trump. Comey has pleaded not guilty, denied perjury and accused the Justice Department of conducting a vindictive investigation.
The Comey saga has a long history.
In June 2017, a month after Comey was fired as FBI director, he testified that he gave Richman a copy of a memo documenting a conversation he had with Trump and authorized him to share the contents of the memo with a reporter.
Following this testimony, Richman allowed the FBI to create an image, or full electronic copy, of all files on his computer and the hard drive connected to that computer. The judge stated that he gave the FBI authority to conduct searches for limited purposes.
Then in 2019 and 2020, the FBI and the Department of Justice obtained search warrants to seize Richman’s email accounts and computer files as part of a media leak investigation that concluded without charges in 2021. These arrest warrants were limited in scope, but Richman claimed the government collected more information than the warrants allowed, including personal media information and sensitive correspondence.
Additionally, Richman said the Justice Department violated his rights by searching his files without a new arrest warrant in September as part of a completely separate investigation.
“The Court further concludes that the Government’s retention of plaintiff Richman’s files amounted to a continued unreasonable seizure,” Kollar-Kotelly wrote. “Therefore, the Court agrees with Petitioner Richman that the Government violated his Fourth Amendment right against unreasonable searches and seizures.”
