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Even before this week, it was painfully obvious that Donald Trump’s pet lawyer, Lindsey Halligan, is entirely out of her depth, with both of her big splashy politically-motivated prosecutions spiraling out of control. This week, though, it became clear that she would be overmatched prosecuting a jaywalker.
Halligan did have one stroke of luck. Wednesday’s “whoopsie I forgot to show the James Comey grand jury my indictment!” news was so astonishing that it made people forget about Monday’s ruling by the magistrate judge in the case.
Is it good when a judge says that he “identified two statements by the prosecutor to the grand jurors that on their face appear to be fundamental misstatements of the law that could compromise the integrity of the grand jury process”? Because that’s what Magistrate Judge William E. Fitzpatrick said when he ordered the government to turn over grand jury materials to the defense.
Though both Monday’s and Wednesday’s humiliations of Halligan relate to the grand jury in the case, they are about two different motions filed by Comey. Monday’s order was about whether the government has to give the record of the grand jury proceedings to the defense. Wednesday’s hearing was about whether Comey was selectively and/or vindictively prosecuted.
Let’s take it from the top, shall we?
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Federal courts have Article III judges — people nominated by the president and confirmed by the Senate for a lifetime seat. Then there are magistrate judges, who are appointed by the district court for fixed terms. Magistrate judges have flexible roles, so different federal courts use them in various ways. In the criminal setting, magistrates often hear pre-trial motions. A district court judge has the discretion to assign a magistrate to specific duties or proceedings.
That’s what is going on in Comey’s case. Judge Michael Nachmanoff is handling the trial, but he assigned Magistrate Judge Fitzpatrick to handle, among other things, Comey’s motion to unseal the grand jury testimony. On November 5, Fitzpatrick ordered the government to produce grand jury materials to the defense, which the government promptly appealed and whined about. Nachmanoff then tasked Fitzpatrick with determining whether the court had made “sufficient particularized findings to support the disclosure of the grand jury materials.”
It is extremely unusual for a defendant to win a motion to unseal grand jury testimony. But this is an extremely unusual case, which Fitzpatrick’s order makes amply clear:
“The Court recognizes this 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.”
Congratulations, Lindsey Halligan! Being forced to disclose grand jury testimony because everything you did was wildly sketchy is indeed a rare and extraordinary achievement. All the administration’s whiny challenge to the order to produce materials managed to accomplish was netting them the 24-page order from Fitzpatrick that detailed all of Halligan’s missteps. Good job, prosecutor team!
About those “fundamental misstatements of the law”
Fitzpatrick reviewed the grand jury testimony and found that Halligan told the grand jury things that were just flat-out wrong. And we’re talking pretty obvious untruths here.
For instance, in response to difficult questions from the grand jurors, Halligan seems to have told the jurors that if she couldn’t answer a question, Comey would “answer these questions at trial.”
Hmm. Is it good when a US attorney — the top prosecutor in her jurisdiction! — doesn’t seem to know that criminal defendants cannot be compelled to testify? Or doesn’t seem to understand that the burden is on her to show Comey’s guilt beyond a reasonable doubt?