In federal district court in Washington, DC, Judge Colleen Kollar-Kotelly handed down two opinions in the last two weeks in a case involving Daniel Richman, a friend and occasional advisor to former FBI Director James Comey. In the first opinion, dated December 12, the Judge ordered the government to return to Richman digital copies of the contents of his computers. In the second opinion, released yesterday, Judge Kollar-Kotelly clarified her first order and addressed government objections.
There's a lot going on in these cases. But the opinions happen to raise important questions of how the Fourth Amendment and the Federal Rules of Criminal Procedure apply to searching and seizing computers. Given my academic focus on those legal issues, I thought I would blog about them and offer some thoughts for the law nerds hoping to learn more about those legal issues and how this new set of opinions deals with them.
Here's the basic problem. When the government gets a warrant to search a computer, it generally seizes the physical device, copies all the data, and then searches the government's copy of the data for the evidence sought. Put another way, investigators make a copy of the digital haystack and then search the copy for the needle that the warrant described as the evidence to be sought.
All of this has an important implication: When the case is over, either charged or uncharged, the government still has a copy of that digital haystack. And if you're the government, you might want to keep that digital haystack. Storage is cheap, so it's not like you need to free the space. And having that haystack might come in handy some day. Maybe someday, maybe even in an unrelated case, you'll have an investigative need that can be met by going back to that digital haystack and looking for a whole new set of needles.
The key question now is, what are the rules for dealing with that haystack years later? Can the government search that already-previously-seized data again, this time for new evidence, either without a warrant—or even with one? And if the owner of the haystack wants the haystack back, can he get it back—and what does getting it back mean?
(1) Introducing the Richman Case
Daniel Richman is a lawyer and law professor who is a close friend of James Comey. Richman has sometimes acted as Comey's counsel, both informally and in the legal sense. During the first Trump Administration, DOJ obtained warrants to search Richman's computers and online accounts for evidence of unlawful disclosure of classified information that had been obtained through Comey. No charges were brought, and the case was closed in 2021. But the government retained copies of Richman's digital files.
Now fast forward to the second Trump Administration. A lot of people have followed this way more closely than I have, and my apologies if I get some of the details wrong here. But as you know from following the news, there has been great deal of interest in the current executive branch in prosecuting James Comey. As I understand things, whereas the Trump 1.0 DOJ investigated Comey for allegedly leaking classified information, the Trump 2.0 DOJ is targeting Comey for allegedly lying to Congress about whether he had authorized Richman to act as a source for news stories.
Here's where the computers come in.
What happened, apparently, is that investigators in Trump 2.0 realized that they still had copies of Richman's digital files held over from the investigation during Trump 1.0. So they searched Richman's files again, this time searching for what Comey had authorized Richman to do. At least some of that information was then used as a basis to get an indictment against Comey. Investigators did not get a second warrant to do this new round of search. They had a copy of the files, so they searched it for what they wanted without new warrants.
Richman has now come into court, seeking a return of his property under Rule 41 of the Federal Rules of Criminal Procedure. Rule 41 gives people a limited right to return of property unlawfully seized from them. As I understand Richman's argument, he's saying that the government never had a right to get copies of all of his data, and that the continued retention of his files violated his Fourth Amendment rights, and that the remedy is to return to him all the copies of his data. Read More




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