Judge William Fitzpatrick has just taken the highly unusual step of granting James Comey access to his grand jury records, including testimony and the audio recording of the grand jury proceedings, explaining that “the record points to 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.”
We shall call this a “Unicorn Spank”, because it’s so unusual.
Grand jury proceedings are, of course, almost always kept secret.
Judge Fitzpatrick then goes on to quote a previous, long standing case, Naegele, when he says “Therefore, in this case, “the Court has before it a rare example of a criminal defendant who can actually make a ‘particularized and factually based’ showing that grounds exist to support the proposition that irregularities may have occurred in the grand jury proceedings and may justify the dismissal of one or more counts of the indictment.”
The Court found and enumerated *11* reasons that he was granting the request, including:
“Fifth, the nature and circumstances surrounding the government’s potential violations of the Fourth Amendment and court orders establish a reasonable basis to question whether the government’s conduct was willful or in reckless disregard of the law.
Sixth, the facts provide a reasonable basis for the defense to show that they were prejudiced by the government’s use of the Richman materials in the grand jury, particularly if the government’s conduct was willful or reckless, given the centrality of these materials to the government’s presentation.
Seventh, the facts establish a reasonable basis for the defense to challenge whether the government took sufficient steps to avoid the collection and review of privileged materials, including the reasons why Mr. Comey was never afforded the opportunity to assert a privilege over his communications until after the indictment was obtained.
Eighth, the facts establish a reasonable basis for the defense to challenge whether privileged information was used, directly or indirectly, by the government to prepare and present its grand jury presentation. This is particularly troublesome because the government’s sole witness before the grand jury was exposed to a “limited overview” of privileged material shortly before he testified.
Ninth, the nature and circumstances surrounding the disclosure of potentially privileged information establish a reasonable basis to question whether the government’s conduct was willful or in reckless disregard of the law. This is particularly significant because Agent-3, after having been exposed to potentially privileged information, chose to testify before the grand jury rather than separate himself from the investigation to contain any further exposure to privileged information and limit any prejudice to Mr. Comey.
Tenth, as discussed in Section IV above the prosecutor made statements to the grand jurors that could reasonably form the basis for the defense to challenge whether the grand jury proceedings were infected with constitutional error.
Eleventh, the grand jury transcript and recording likely do not reflect the full proceedings because, although it is clear that a second indictment was prepared and presented to the grand jury (ECF 3), the transcript and audio recording of the proceedings do not reflect any further communications after the grand jury began deliberating on the first indictment.”
And concludes “Accordingly, the defense request for all grand jury materials is granted.”
Pay close attention because this may be the only time in our lifetime that we will see an order that says that!
