The Civil Suit That Could Derail the Comey Prosecution (Again)

Daniel Richman, a central figure in the now-dismissed criminal case against James Comey, files suit over the government's handling of his property.

When a federal judge dismissed the criminal case against former FBI director James Comey last week, it raised an obvious question: What next?

Initially, the government seemed poised to appeal the Nov. 24 ruling, with both the White House press secretary and the Attorney General signaling that an appeal was imminent. Yet more than a week later, no notice of appeal has been filed with the court.

An appeal, however, is not the government’s only option. The judge dismissed the case “without prejudice,” meaning that the Justice Department is free to seek a new indictment.

Tonight, CNN reports that prosecutors are preparing to do just that. According to the network’s report, the Justice Department “could present a new indictment against James Comey to a grand jury as soon as this week.”

But a newly filed civil action in the District Court for the District of Columbia could complicate that plan — and potentially derail the Comey case altogether.

Daniel Richman, a central figure in the now-dismissed criminal case against Comey, has filed suit over the government’s handling of materials obtained from his electronic devices. The lawsuit — first reported here — alleges that the government violated Richman’s Fourth Amendment rights by unlawfully seizing, searching, and retaining those materials.

The files at issue in Richman’s suit were initially gathered between 2017 and 2020 in relation to a separate FBI investigation known as “Arctic Haze.” That probe examined how classified information about the FBI’s investigation into Hillary Clinton’s private email server ended up in a 2017 New York Times article. Since the Times article quoted Richman — a law professor and longtime confidante of Comey — the FBI gathered a sweeping set of data from his devices. Though both Richman and Comey were eventually cleared in relation to the Arctic Haze matter, the government nonetheless held on to Richman’s materials.

Years later, in 2025, investigators again combed through those materials, searching for evidence to support the criminal prosecution of Comey. Notably, the government’s core evidence in the Comey case appears to derive from those very files.

All of which is why Richman’s lawsuit could pose a significant problem for the Justice Department. To remedy the alleged constitutional violations, Richman is seeking the return of his property pursuant to Federal Rule of Criminal Procedure 41(g), which allows a person aggrieved by an unlawful search and seizure to move for the property’s return. Beyond that, the suit asks the court to “enjoin the government from making any further use of the improperly seized or retained material.”

Alternatively, Richman requests an evidentiary hearing to determine: “(1) the precise contours of the government’s conduct, (2) why it did it, and (3) whether that constitutes callous disregard or intentional misconduct.”

Any one of these outcomes could spell trouble for the prosecution. If the court grants the requested injunction, prosecutors would be barred from using the evidence that forms the backbone of the Comey case. Even temporary or partial injunctive relief could delay efforts to seek a new indictment. And an evidentiary hearing, if ordered, could provide Comey’s lawyers with further evidence of government misconduct should his case be revived.

I, for one, will be following the litigation closely.

Read Richman’s memorandum in support of his 41(g) motion here.

Read my previous reporting and analysis of the Comey case for Lawfare, here or here.