A federal judge on Wednesday criticized the Justice Department’s prosecution of former FBI Director James Comey, saying he was concerned by the department’s “highly unusual” handling of the case by moving to “indict first, investigate second.”Magistrate Judge William Fitzpatrick in Alexandria, Virginia, also ordered the Justice Department to turn over all grand jury evidence and other materials to Comey’s legal team by close of business Thursday, underlining his apparent criticism of federal prosecutors’s actions in the case.Comey was indicted last month after public pressure from President Trump on Attorney General Pam Bondi and the Justice Department, and is charged with one count of making false statements and one count of obstruction of justice, related to Senate testimony he gave almost five years ago pertaining to whether or not Comey had authorized leaks to the media during his time as FBI director.The two-page indictment accuses the former FBI director of falsely telling lawmakers that he never gave anybody at the FBI permission to serve as an anonymous source in news reports about the bureau’s investigation into Hillary Clinton. That alleged anonymous source is Daniel Richman, a longtime friend of Comey’s and a Columbia University law professor. Richman’s name did not come up in the Senate testimony that led to charges against Comey.The evidence at issue Wednesday is troves of data that the Justice Department gathered between 2019 and 2020 in a past Justice Department investigation during the first Trump administration known as “Arctic Haze.”The investigation, detailed in a memo declassified by the bureau earlier this year, sought to figure out how classified details on the FBI’s investigation into Clinton’s use of a private email server made their way into a 2017 New York Times article, which looked at Comey’s decision-making while leading the politically fraught probe. No one was charged in the investigation.One of Comey’s attorneys, Rebekah Donaleski, said there are four different warrants that were executed on Richman in the “Arctic Haze” investigation that she knows of and evidence returned from those seizures could be used as part of the Justice Department’s case against Comey. She said nobody on Comey’s legal team has been given access to that information yet, and they have not been able to screen that data, which includes hard drives and phone and email records, for potentially privileged information that could have been used in the indictment.Comey attended the hearing but did not speak.Nathaniel Lemons, a North Carolina based assistant U.S. attorney who was tapped to lead the prosecution in Virginia alongside Trump-appointed U.S. Attorney Lindsey Halligan, argued for the Justice Department on Wednesday. Lemons said the materials are “isolated on a desk in FBI headquarters” and that investigators were “not going to touch this evidence until the court approves” a plan for handling it. Fitzpatrick ordered the Justice Department to not look at the material themselves until the court resolves any potential privilege claims asserted by Comey and his legal team, and said that the Justice Department can use evidence it believes to not be privileged “at their own risk.”Donaleski said she is “gravely concerned” about the Justice Department’s handling of the evidence, and said it is possible that the way information has been withheld in this case so far is unconstitutional and in violation of the Fourth Amendment. “We’re going to fix that, and we’re going to fix that today,” the judge said, adding that Comey’s legal team is “entitled to this information quickly.”Patrick Fitzgerald, another attorney for Comey, said that they are working through massive amounts of evidence in the case, which includes classified information. Fitzgerald said he has not been able to access that classified information yet because he has faced delays in getting his security clearance approved.
