Judge blocks DOJ use of seized emails in Comey case
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James Comey speaks to members of the media at the Rayburn House Office Building after testifying on Dec. 7, 2018. Photo: Alex Wong/Getty Images)
A federal judge further scrambled the Justice Department's effort to resurrect its case against ex-FBI director James Comey, finding prosecutors likely violated Comey's former lawyer's constitutional rights by using his emails and computer files seized years ago.
Why it matters: The Justice Department's path to re-prosecute Comey, after another judge tossed his indictment late last month, appears increasingly complicated, as the department continues to run into legal challenges to its rushed prosecution.
- Another judge previously described the now-prohibited materials as the "cornerstone" of the prosecution's case.
Driving the news: Senior U.S. District Judge Colleen Kollar-Kotelly blocked the government from accessing data taken from Daniel Richman, Comey's friend and former attorney.
- The judge granted a temporary restraining order halting the DOJ from searching or relying on evidence Richman's lawyers argued was illegally seized and retained.
- She wrote in her order that Richman was "likely to succeed" in showing "the Government has violated his Fourth Amendment right against unreasonable searches and seizures by retaining a complete copy of all files on his personal computer" and searching those files without a warrant.
What's inside: Kollar-Kotelly noted the government has not said who has custody of the materials, so "uncertainty about its whereabouts weighs in favor of acting promptly to preserve the status quo."
- Her order, which is set to remain in place until Friday, also required the government to certify by Monday that it is complying.
- The DOJ did not immediately respond to Axios' request for comment.
Catch up quick: Another judge last month also scrutinized the DOJ's reliance on evidence pulled years ago to probe Richman's devices and email accounts during the "Arctic Haze" investigation.
- Magistrate Judge William Fitzpatrick questioned whether the government had overstepped by "rummag[ing]" through evidence from prior searches and materials that could have been privileged to shape the since-dismissed indictment.
- He described "a disturbing pattern of profound investigative missteps, missteps that led an FBI agent and a prosecutor to potentially undermine the integrity of the grand jury proceeding."
What they're saying: Richman's attorneys argued in a late November filing that the government's alleged "over-seizure and retention" of his files and the subsequent warrantless search showed "callous disregard" for his constitutional rights.
Zoom out: Comey was originally indicted on charges of lying to Congress and obstructing its investigation into the Russia probe. He pleaded not guilty.
- The case against Letitia James, another Trump foe, was tossed the same day as Comey's on the same grounds: that Trump's hand-picked interim U.S. attorney for the Eastern District of Virginia was illegally appointed.
- A grand jury declined to re-indict her last week.
The bottom line: Saturday's roadblock will likely stand in the way of any attempt for the government to use the same evidence to again seek an indictment against Comey — a process that could also be hindered by the expiration of the statute of limitations on the charges he faced.
- Attorney General Pam Bondi had vowed to take "all available legal action, including an immediate appeal" after senior U.S. District Judge Cameron McGowan Currie dismissed Comey's and James' cases. But to date, the DOJ has yet to file an appeal.
Go deeper: Trump's DOJ purge backfires as courts toss Comey, James cases
