A federal judge appointed by President Bill Clinton has ordered the FBI to destroy emails that prosecutors say are central to the obstruction and false statements case against former FBI Director James Comey, a decision that legal experts warn could severely undermine any future prosecution. U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia issued the order on December 13, directing the FBI to permanently delete all data seized from Columbia Law School professor Daniel Richman by Monday afternoon. Richman is a longtime friend of Comey and a former government contractor whose communications are alleged to contain evidence of misconduct.
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The emails in question include exchanges between Richman and Comey that prosecutors claim show Comey authorized leaks to the media and later gave false testimony to Congress about his role in those disclosures. The ruling follows Comey’s September indictment on two counts—making false statements to Congress and obstructing a congressional proceeding—stemming from his 2020 testimony regarding the FBI’s Trump-Russia investigation. Prosecutors allege Comey denied using intermediaries to leak information, despite evidence suggesting he relied on Richman as an outside conduit while Richman held a government contract.
The decision has drawn particular controversy because the emails were originally seized under a warrant signed six years ago by Judge James Boasberg, an Obama appointee, and were part of an active criminal investigation. Kollar-Kotelly’s order, issued from a separate court and district, not only mandates the destruction of the evidence but also limits its future use. While she allowed a single copy of the emails to be provided to Judge Michael Nachmanoff, who is overseeing related proceedings in Virginia, she barred prosecutors from reviewing or relying on the material in any future filings.
Legal critics argue the ruling is extraordinary and potentially unconstitutional. Mike Davis, president of the Article III Project and a former Senate Judiciary Committee counsel, said the order threatens the separation of powers and could cripple prosecutors if they attempt to pursue a new indictment. He emphasized that Richman is not a defendant in the case and that Rule 41(g) of the Federal Rules of Criminal Procedure—under which Richman sought the return of his property—is typically used by defendants, not third parties, especially when the material contains evidence against someone else.
The situation is further complicated by a recent dismissal of the Comey indictment by Judge Cameron Currie, another Clinton appointee, who ruled that the appointment of the interim U.S. attorney leading the prosecution was unconstitutional. The Justice Department has appealed that ruling to the Fourth Circuit, and officials are expected to seek an emergency stay of Kollar-Kotelly’s order from the D.C. Circuit or the Supreme Court. If the destruction order stands, prosecutors could permanently lose access to some of the most direct evidence in the case, potentially marking a rare and consequential moment in which a judge outside a criminal proceeding orders the elimination of key evidence against a former FBI director.[/read]