Judge’s Order Complicates Justice Dept. Plans to Again Charge Comey

Justice Department officials have been considering whether to bring new charges against James B. Comey, the former F.B.I. director, after a different judge dismissed the original case against him.

A federal judge ordered the Justice Department on Friday to get rid of a critical trove of evidence it used in September to bring charges against James B. Comey, the former F.B.I. director, saying that prosecutors had obtained the materials unlawfully.

The decision by Judge Colleen Kollar-Kotelly of Federal District Court in Washington complicated the department’s plans to seek a new indictment of Mr. Comey in the coming weeks.

Judge Kollar-Kotelly’s ruling landed at a delicate moment for the Justice Department. Officials have been considering whether to bring a fresh round of charges against Mr. Comey after a different federal judge dismissed the original case he was facing, deciding that the loyalist prosecutor picked by Mr. Trump to file it was appointed to her job illegally.

In its broad strokes, the ruling highlighted a series of procedural missteps by the Justice Department as it investigated Mr. Comey during Mr. Trump’s first presidency and his current term in office. It suggested that sloppiness by the department had helped to sabotage the president’s public demands to use the criminal justice system to go after people like Mr. Comey, whom he has described as one of his chief enemies.

Judge Kollar-Kotelly’s 46-page ruling was focused on a cache of emails and text messages between Mr. Comey and one of his close confidants, Daniel C. Richman, a former federal prosecutor who now teaches at Columbia University’s law school. Investigators first obtained the materials in 2019 and 2020 from several of Mr. Richman’s electronic devices, when they were conducting a different inquiry into whether Mr. Comey had leaked information to the news media through Mr. Richman about Hillary Clinton’s use of a private email server.

Prosecutors used the same files in their more recent efforts to charge Mr. Comey with lying to and obstructing Congress in testimony he gave to the Senate Judiciary Committee, in which he denied leaking information concerning sensitive investigations conducted when he ran the F.B.I.

But late last week, as prosecutors were on the verge of seeking a new and similar indictment against Mr. Comey, Mr. Richman claimed in an emergency filing to Judge Kollar-Kotelly that the Justice Department had obtained his files in violation of his constitutional rights. As part of the filing, he argued that the government should not be permitted to use the materials in any new attempt to re-charge Mr. Comey.

Last weekend, Judge Kollar-Kotelly issued a preliminary order barring the prosecutors from accessing Mr. Richman’s files as she delved into the issues. Mr. Richman had made three claims about how the government had violated his rights in the way that it used his private data — all of which Judge Kollar-Kotelly agreed with in her order on Friday.

He claimed that prosecutors in the original leak investigation scrutinized more of his messages than their original search warrants permitted, then improperly held on to the materials for years, even though the inquiry ended without charges.

More important, he argued that when prosecutors in the Eastern District of Virginia renewed the investigation into Mr. Comey just two months ago, they failed to obtain a new search warrant to look at the messages again — an oversight that Judge Kollar-Kotelly said on Friday was inexplicable.

While the judge’s ruling made it more cumbersome for prosecutors to use Mr. Richman’s files in any new attempt to indict Mr. Comey, it did not make that endeavor impossible. Indeed, Judge Kollar-Kotelly sought to balance protecting Mr. Richman’s rights with the Justice Department’s interests in pursuing criminal charges if it felt that they were warranted.

Her solution was to allow the department to place a copy of Mr. Richman’s files on deposit with officials in Federal District Court in the Eastern District of Virginia, which prosecutors could subsequently gain access to with a new court-approved search warrant. The judge said the court could allow Mr. Richman to try to quash the warrant if he felt it was improper.

“Requiring the government to return all copies of the files to petitioner Richman could unduly impede the government’s interests in pursuing future investigations and prosecutions if — as the government strongly suggests in its briefing — it intends to pursue further prosecution of Mr. Comey,” the judge wrote.

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