The Comey Case Is Now
Officially a Comedy of Errors
Nov. 20, 2025
By David French
Opinion
Columnist
I was a litigator for 21
years, and it’s safe to say that I never witnessed the level of legal
incompetence that we are witnessing from the Trump administration.
Consider two stories,
both from this week alone. First, on Monday, William Fitzpatrick, a federal
magistrate judge who is assisting Michael Nachmanoff, the federal judge
presiding over the administration’s prosecution of James Comey, the former
director of the Federal Bureau of Investigation, released an opinion about
a series of staggering procedural irregularities that originated with Lindsey
Halligan, Trump’s handpicked prosecutor in the case.
The magistrate didn’t
recommend dismissing the case (at least not yet), but he did take the highly
unusual step of ordering the administration to release otherwise-confidential
information about the grand jury proceedings, a move that could very well lay
the foundation for dismissal.
The judge found that the prosecutors
had mishandled attorney-client communications between Comey and one of his
former lawyers, Daniel Richman, who is a law professor at Columbia Law School
and a personal friend of Comey’s.
Attorney-client
privilege is sacred in the law, and the Trump administration not only abandoned
normal Department of Justice procedures for evaluating whether it had seized
privileged information when it executed search warrants against Richman during
Trump’s first term, it may have even used privileged information to make its
case to the grand jury — a gross violation of Comey’s rights.
That’s not the only
administration failure in Comey’s case. The magistrate also raised concerns
about whether the Trump F.B.I. “complied with a fundamental requirement of the
Fourth Amendment” when it executed the Richman search.
The Richman search
warrant dates back to Trump’s first term. The F.B.I. executed a search on an
entirely unrelated matter. It was investigating whether Comey had stolen
government property and improperly transmitted national defense information. It
dropped the investigation, but it retained Richman’s documents. This year, it
went back to look at the documents again, this time to investigate a separate
crime.
To be clear, search
warrants are supposed to be narrow and precise. Law enforcement is only
supposed to seize evidence that is potentially relevant to the underlying
crimes under investigation.
That’s not what happened here. As
Andrew McCarthy, a former federal prosecutor, wrote in National Review,
“The search warrants imposed temporal limits on which of Richman’s
communications the F.B.I. was permitted to search.”
“According to
Fitzpatrick,” McCarthy continued, “those limits were ignored: The government
grabbed digital files indiscriminately.”
So that’s a second grave
breach of legal standards. But there’s more — it also appears that Halligan
misled the grand jury by misstating one of the basic elements of constitutional
law.
According to the
magistrate, when grand jurors challenged Halligan on the strength of the
evidence against Comey, Halligan responded with a “fundamental and highly
prejudicial misstatement of the law that suggests to the grand jury that Mr.
Comey does not have a Fifth Amendment right not to testify at trial.”
In other words, she may
have wrongly suggested that it would be up to Comey to disprove the allegations
against him, rather than properly placing the burden of proof on the
prosecution.
It gets worse. Halligan also seemed to
assure the grand jury that “they did not have to rely on the record before them
to determine probable cause, but could be assured that the government had more
evidence — perhaps better evidence — that would be presented at trial.”
Again, this is not the
standard. As McCarthy wrote, “It is elementary that the grand jury is supposed
to consider the evidence in the record and not make assumptions about other
evidence the government may or may not have.”
Halligan also appears to
have completely botched the process of securing the indictment. She sought a
three-count indictment, but the grand jury indicted only on two counts. Yet,
through a mysterious series of events, she signed two different indictments — a
first indictment that, according to the magistrate, “indicated that the grand
jury failed to find probable cause as to any count” and a two-count indictment
that didn’t include the rejected third count.
Compounding the problem,
at a court hearing on Wednesday, the D.O.J. admitted that it never presented the two-count indictment to the
full grand jury. Instead, Halligan seems to have copied the two approved counts
into a new document and discussed it with the foreperson without returning to
the grand jury.
As the magistrate wrote,
“If this procedure did not take place, then the court is in uncharted legal
territory in that the indictment returned in open court was not the same
charging document presented to and deliberated upon by the grand jury.”
Wednesday’s hearing also contained
another bombshell. As my newsroom colleagues wrote, “one of Ms. Halligan’s
subordinates, Tyler Lemons, acknowledged that someone in the deputy attorney
general’s office had instructed him not to discuss in open court whether his
predecessors had — or had not — written a memo laying out their reasons for not
bringing charges, because that was privileged information.”
Lemons then admitted
that this memo exists.
We do not yet know if
Halligan’s procedural irregularities will be fatal to the case, but I do know
that if I’d committed that level of malpractice when I was litigating, it would
have been instantly fatal to my continued employment.
Just when I thought we were reaching peak legal incompetence, I read
a court opinion on
Tuesday that made me realize that levels of legal buffoonery exist that I find
it hard to imagine.
A three-judge federal
panel issued a 2-to-1 opinion striking down the recent Texas gerrymander that
was designed to engineer more safe seats for Republican representatives to the
House. The majority opinion is by Judge Jeffrey Brown, a Trump appointee.
If you’re a state
government, it’s actually hard to lose a gerrymandering case. The Supreme Court
has made it clear that it will not intervene to block partisan gerrymanders.
If you want to draw crazy maps to maximize the number of Republican or
Democratic voters in a given district, have at it.
It is still possible (for now) to
challenge a gerrymander on racial grounds, but those are difficult cases to win
— especially when race and partisanship overlap. In the Deep South, to take the
most salient example, white voters are overwhelmingly Republican and Black
voters are overwhelmingly Democratic. This makes it difficult to discern where
partisanship ends and explicit racial gerrymandering begins.
Unless you’re the Trump
administration. Then, you’ll write a letter to the state of Texas ordering it
to change the racial composition of its congressional districts.
That’s exactly what the
Department of Justice did. The Trump administration accused Texas of racial
gerrymandering when it created the districts, but then tried to argue that the
remedy for a racial gerrymander was … another racial gerrymander. As the court
wrote, “the remedy for such racial gerrymandering, according to D.O.J., is to
change the offending districts’ racial makeup.”
The judge was scathing.
“It’s challenging to unpack the D.O.J. letter,” he wrote, “because it contains
so many factual, legal, and typographical errors. Indeed, even attorneys
employed by the Texas attorney general — who professes to be a political ally of
the Trump administration — describe the D.O.J. Letter as ‘legally unsound,’
‘baseless,’ ‘erroneous,’ ‘ham-fisted,’ and ‘a mess.’ ”
While we don’t know how
the courts will ultimately rule (Texas has appealed, and the law still favors
partisan gerrymanders), it is now quite possible that the Republican Party
could lose control of the House in part because the Trump administration was too
incompetent to rig the districts properly.
Don’t think for a second that I’ve
simply cherry-picked two bad moments from what is otherwise a parade of legal
excellence. While there are good lawyers on Trump’s legal teams (the solicitor
general, D. John Sauer, for example, is a very effective advocate), the Trump
team’s lies, distortions and shortcuts are causing problems in case after case after case after case.
Even normal levels of partisanship can breed incompetence.
Partisans tend to limit jobs for the best available Republican or the best
available Democrat — a limitation that can remove from consideration countless
qualified candidates. But the culture of authoritarianism magnifies this
problem.
Authoritarians want you
to follow their will, not the law; they value personal loyalty over party
loyalty; and they tend to erupt over disagreement and dissent, viewing it as a
betrayal. They are often quite keen to enrich themselves, and they build loyalty
by enriching their allies and punishing their enemies, justice be damned.
Competent and
conscientious people tend to often shun such an environment, but corrupt
opportunists love it. They wallow in it. It is, after, all the best place for
them to thrive.
Authoritarian
incompetence can be a profound mercy. If the Russian Army had been as
professional as the American military, it would have almost certainly occupied
Kyiv long ago. On paper, the Russian Army vastly overmatched the Ukrainian
military, but decades of brutality and graft had resulted in troops’ being poorly trained,
vehicles’ being poorly maintained and
tactics that were suicidally stupid.
Trumpist incompetence is also a mercy
to America. So long as America’s judges retain their independence, they can and
will swat aside his worst arguments and block his worst actions. In this way,
he is actually making it easier for judges to resist his worst impulses. He
undermines his own legal position. He creates the conditions that will make him
lose cases that better and more effective leaders could win.
While ineptitude can
hamper Trump, it won’t stop him. There are areas — such as his conduct of
foreign policy — where Trump and his sycophants reign supreme.
There’s an additional
danger, especially over the long term. Institutions that authoritarians can’t
master, they often seek to destroy.
And so it is with the
judiciary. Stephen Miller, perhaps Trump’s most influential adviser, has
accused judges of participating in a “legal insurrection”
for blocking Trump’s unlawful orders, and many of Trump’s allies are calling
for him to defy the courts.
Trump sued all
15 Maryland Federal District Court judges after the chief judge of the United
States District Court for the District of Maryland issued a two-day hold on
deportations for immigrants who had filed a writ of habeas corpus.
Normally, an administration appeals a
ruling it believes to be erroneous. Here the administration sued the judges
directly.
It was a ridiculous
lawsuit, and it was promptly tossed out by
Judge Thomas Cullen, another Trump appointee. But the battle is not won, and
the judiciary is not safe. This month, for example, Brandon Gill, a Republican
representative from Texas, introduced articles of
impeachment against Judge James Boasberg for the second time,
claiming that by approving subpoenas of Republican legislators as part of the
former special counsel Jack Smith’s investigation into Trump’s effort to
subvert the 2020 election, Boasberg committed an impeachable offense.
Nor can we forget that
many federal judges are facing threats to their lives simply for doing
their jobs.
Trump remains on the offensive in American politics. Every day his
administration batters the judiciary. Every day, his MAGA movement attacks and
terrifies its opponents. Every day, he’s inching forward. His minions often
don’t fight with skill, but they fight, and they fight hard.
When Trump is angry, he
tends to escalate, not retreat (and retreats only as a last resort), and even
the most incompetent men can get their way if they’re powerful enough, brutal
enough and relentless enough to keep pushing until rival institutions crumble,
crack and fall.
Some other things I did
On Sunday, I wrote about the Catholic Church’s response
to Trump’s immigration crackdown. A clear Christian resistance to MAGA has
emerged, and it’s emerging in the right way:
Partisanship is
poisonous to the church. Neither party’s political platform truly embodies the teachings of the New Testament.
Each party has its moral strengths and weaknesses, which is why you can find
Christians and people of every faith and no faith on both sides of the
political aisle.
But when partisanship
becomes part of your identity — much less part of your faith — it has a
pernicious effect: It causes you to highlight the deficiencies of the other
side while tempting you to rationalize or minimize the injustices on your own.
Partisanship makes hypocrites of us all. I know it made a hypocrite of me on my
worst partisan days.
The approach that Pope Leo takes, by
contrast, puts virtue outside and above politics. His declarations are the
living embodiment of Martin Luther King Jr.’s
admonition that the church “is not to be the master or the
servant of the state, but the conscience of the state.”
On Saturday, my round-table discussion with my
colleagues Jamelle Bouie and Michelle Cottle focused on the Epstein files. Why
is this scandal sticking to Trump when so many others haven’t? The answer is
complicated, but part of the reason is that Trump is behaving differently. He’s
acting like he’s got something to hide:
And then also there’s
this other thing, that this is about the only scandal in the Trump era where
he’s engaging in that classic political dissembling that makes voters’ antennae
go up. Like, is there something real here? Because the other way that he’s dealt
with scandal in the past in his administration is just to do it, right out in
the public.
I wrote about this. He pardons a guy whose company
helped pump up the value of Trump crypto, and he just does it. Or he just
releases the memo about trying to extort a political investigation out of
Zelensky. He just puts it all out there, and it really confuses voters because
they’re not used to politicians just dumping their scandal out on the public
and just saying: Here it is. But this is classic political scandal conduct —
hiding the ball, working very hard to keep things concealed. And all of that
broadcasts to the public that there’s something bad here. And so I think it’d
be malpractice for the Democrats not to lean into that in the short term.
