As a federal judge mulls over whether a magistrate’s decision requiring the Department of Justice to disclose “all” grand jury materials to James Comey’s defense team stands, the former FBI director argued that the Trump administration’s lack of transparency in court this week signals “confirmation” of wrongdoing. Specifically, Comey suggested that interim U.S. Attorney Lindsey Halligan pressed charges despite knowing that experienced prosecutors had reservations about their validity, and misled the grand jury to penalize a perceived adversary of the president.

In a recent filing, Comey’s legal team emphasized what they described as a “deeply concerning” incident during a Wednesday hearing before U.S. District Judge Michael Nachmanoff. During this session, the DOJ conspicuously avoided confirming the existence of a “declination memo,” which would detail why prior prosecutors in the Eastern District of Virginia deemed the evidence against Comey for false statements and obstruction insufficient.

According to Politico, Judge Nachmanoff inquired about the memo, to which prosecutor Tyler Lemons admitted that Deputy Attorney General Todd Blanche’s office had instructed him not to disclose whether such a document existed, despite reports indicating the existence of at least three memoranda.

Pressed further, Lemons reportedly acknowledged being aware of written discussions on the potential for charges but declined to elaborate, citing that such a memo would be protected as DOJ “work product” and not required to be shared with Comey.

Conversely, Comey’s attorneys argue that a declination memo could serve as exculpatory evidence, beneficial to the defense, potentially proving Halligan’s alleged “misconduct.” This, they contend, fully supports U.S. Magistrate Judge William Fitzpatrick’s decision earlier in the week to mandate the DOJ’s release of grand jury materials, allowing the defense a glimpse into Halligan’s statements.

In a footnote, the defense needled the prosecution for its evasiveness on the memo issue, calling it stonewalling that speaks for itself.

“The government’s refusal to answer basic questions about the existence of this declination memorandum and decision to hide behind a flimsy claim of privilege to stonewall the Court’s inquiries, should be taken as confirmation that such a memorandum exists,” the footnote said.

According to the defense, if there is proof that Halligan was “advised by career prosecutors in that declination memorandum that ‘seeking the charges would violate DOJ policy, raise serious ethics issues, and risk being rejected by the grand jury,’” then this opens the door to dismissal on its own.

“Mr. Comey is entitled to learn what Ms. Halligan said in order to try to convince a grand jury that Mr. Comey remembered a communication for which there is no evidence he received,” the filing continued, alluding to a counterintelligence operational lead (CIOL) from 2016 warning the “Clinton campaign was going to create a scandal regarding Trump and Russia[,]” according to Sen. Lindsey Graham’s phrasing during 2020 questioning of Comey.

The grand jury, the defense noted, ultimately rejected a criminal charge related to Comey’s answer that the CIOL didn’t “ring any bells,” so if Halligan “presented misleading evidence on a charge—and/or omitted material exculpatory facts on the same point—after being clearly told that there was insufficient evidence on that point, that would be quintessential proof of misconduct before the grand jury justifying dismissal[.]”

The defense added that there is no evidence Comey ever saw the CIOL the DOJ tried to indict him for lying about:

There is no electronic trail showing that Mr. Comey received the CIOL at issue. There is no paper trail showing that he received it. And there is no witness who says that Mr. Comey either received it or discussed it with him. Full stop.

This total lack of evidence is extremely troubling in light of credible press reporting that not only does a declination memorandum exist in this case, but it made clear that with respect to the CIOL in particular, a prior investigation found that Mr. Comey’s statement could not support a false-statement charge because there was insufficient evidence Mr. Comey had ever seen the CIOL.

What’s more, Comey’s lawyers asked Nachmanoff to review the materials himself, just like the magistrate did, and draw conclusions about whether some combination of a potentially “tainted” FBI agent witness “exposed” to attorney-client privileged information and Halligan “misstatements of law” before the grand jury could doom the case.

“The Court here should similarly review the materials as part of the government’s appeal and dismiss the government’s deflection,” the filing said, before briefly summarizing what discovery has indicated so far. “[T]here appears to be numerous pieces of highly exculpatory evidence that—given its tendency to undermine the existence of probable cause—Ms. Halligan likely did not present to the grand jury, and without which the grand jury would have been left with a deeply misleading picture of the case.”

In a response Wednesday, the DOJ resisted disclosure by saying that even if Halligan made “misstatements of law” to the grand jury, that should not override grand jury secrecy and should not lead to the dismissal of the case.

“The magistrate judge also found that two alleged misstatements of the law by the U.S. Attorney to the grand jury provided another basis for ordering disclosure of the grand jury material,” the DOJ said. “That, too, was contrary to law, since those alleged misstatements — even if they were incorrect statements of the law — are no basis to dismiss the indictment.”

Asserting that Comey did not carry his “burden,” the DOJ argued that Fitzpatrick misread the grand jury transcript and drew “incorrect legal conclusions” based on “factual assumptions” about Halligan’s activities.

“The U.S. Attorney did not misstate the law, the grand jury was not misled, and the transcript shows a routine, regular presentation of the indictment,” the government insisted.

The Comey reply also comes not long after Halligan created a new firestorm of her own, by misleadingly slamming the judge in comments to the New York Post.