Tension over evidence builds between Comey team and federal prosecutors as January trial looms

By Katelyn Polantz, CNN

(CNN) — When former FBI Director James Comey was charged last month, prosecutors weren’t ready or willing to turn over the criminal case file to his lawyers.

As of Tuesday, after days of disputing what case documents they have to provide, prosecutors handed his lawyers what they needed to, a person familiar with the case told CNN.

Still, the back and forth over discovery this week highlights the growing tension between prosecutors’ approach to the Comey case — including these early attempts to delay turning over some evidence — and Judge Michael Nachmanoff’s efforts to get the former FBI director to trial in fewer than three months.

The brief but notable discovery standoff also has put more of a focus on the three weeks of leadership of interim Eastern District of Virginia US Attorney Lindsey Halligan, who has little courtroom experience but was named to the position by President Donald Trump, after she decided to override and sideline more experienced prosecutors who had doubts about the Comey case.

Prosecutors who Halligan brought in for the court proceedings told the judge at the arraignment last Wednesday that they were still “getting our hands around discovery” and working on the possibility of having classified information declassified for use in the case.

“In the ordinary course, prosecutors in a case like this would have all their ducks in a row before going to the grand jury,” Jessica Roth, a Benjamin N. Cardozo Law School professor who specializes in criminal law and ethics, told CNN about the case developments so far.

“There’s no signs that the government is interested in a quick trial,” she added. (Roth, earlier in her career, worked for Comey as a prosecutor. She and Comey are no longer in touch.)

Justice Department spokesman Chad Gilmartin on Tuesday defended Halligan’s work on the case. When asked about the office’s preparedness, he said she “has the full support of the Attorney General and Deputy Attorney General to uphold the law and prosecute crime in the Eastern District of Virginia.”

Roth, however, noted the prosecutors on Comey’s case, including Halligan, all parachuted into it just days before the indictment in late September and the arraignment on October 8.

The two attorneys who had appeared at Comey’s arraignment came from a prosecutors’ office in North Carolina, after Attorney General Pam Bondi directed Justice leadership to send additional resources to Halligan for the effort around the case, according to a person familiar with the approach.

The DOJ approach, Roth said, “reflects the rushed nature of the case and [its] inverted nature.”

Nachmanoff, at Comey’s arraignment, registered his intent to have the case go to trial quickly.

“This does not appear to me to be an overly complicated case. There are two counts. It’s a discrete set of facts,” the judge said in Comey’s arraignment. “I’m not going to let things linger … I will not slow this case down because the government does not promptly turn everything over.”

Even after Comey’s first court appearance last week, prosecutors sought deadlines later in October for them to turn over evidence, while Comey’s team asked for records more quickly so they could meet upcoming deadlines for the judge.

Four days ago, Comey’s team told the judge they had received “one page of discovery.”

The Justice Department has said that part of the holdup was a lack of agreement over how the evidence would be protected from being shared outside the defense team. Prosecutors said the evidence in the case is “law enforcement sensitive, for official use only, includes private emails or texts, or is otherwise sensitive because of the private nature of information,” according to one recent court filing.

Protecting the evidence from public consumption also generally helps to ensure a fair trial, according to court papers and procedures.

Prosecutors also told the judge they wanted to prevent Comey himself from having “unfettered access” to the evidence in his case. They lost that battle with the judge and a court order that protects sensitive evidence from being shared widely is now in place.

At the hearing, Comey’s attorney, Patrick Fitzgerald, asked “forthwith” —lawyer-speak for immediately — for the appointment papers of Halligan. He noted most US attorneys’ appointment documents are just a page or two, and his team needed them immediately so they can finish writing their challenge to her prosecutorial authority, which is due on October 20.

Prosecutors said over the weekend they had turned a document on Halligan’s appointment over to Comey’s team.

Another possible hiccup to the judge’s speedy trial timeline still lingers: The amount of classified information the Justice Department wanted to include in the case file.

“How could you not have your arms around that already? That’s where I saw the tension arising at the arraignment,” Patrick Cotter, a white-collar defense lawyer with the law firm UB Greensfelder, recently told CNN.

The judge on Tuesday finalized a schedule for the court process of prosecutors potentially using classified information at trial, setting hearings in November and December that will keep the January 5 trial date on track, according to his latest order.

“We see this as a simple case as well, Your Honor,” Fitzgeralds aid in court at the arraignment, before he expressed his concern of “walking into a buzz saw of classified information the way other cases might.”

“Frankly, we would have thought in the normal course when the government brings a case, they address the classified information issues ahead of time, coordinate within the national security section, and have a plan. And, frankly, we feel like in this case, the cart may have been put before the horse,” Fitzgerald added.

Nachmanoff, too, urged the Justice Department to make decisions on the classified records quickly, and keep it simple.

“There should be no reason that this case gets off track because of the existence of some classified information,” the judge said. “Either it’s not relevant to the case or it can be declassified or we will go through the fastest CIPA (classified information protection) process you have ever seen in your lives.”

CNN’s Evan Perez contributed to this report.

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