"First, they cite a bunch of precedents claiming that one cannot use Rule 41 to thwart a prosecution. Best as I can tell, every single one of those precedents pertain to someone trying to withhold his own property to thwart his own prosecution. Michael Deaver trying to stop a Special Prosecutor investigation of himself. Paul Manafort trying to thwart a prosecution of himself. Justin Paul Gladding in a case where he was trying to get his own non-CSAM data back after a conviction. A grand jury case where the subject of the investigation tried to get his files back."
"Richman served as a special government employee at the FBI between June 2015 and February 2017.1 Shortly after his departure from the FBI, the Government began investigating whether Richman had disclosed classified information to The New York Times concerning Comey's decisionmaking process concerning the FBI's investigation into former Secretary of State Hillary Clinton's use of a private email server. See CM/ECF No. 1-1 at 3. The investigation demonstrated, among other things, that Comey had used Richman to provide information to the media concerning his-that is, Comey's-decisionmaking process concerning the Clinton email investigation and that Richman had served as an anonymous source in doing so."
DOJ attorneys responded to a Rule 41 challenge by asserting that Rule 41 cannot be used to thwart a prosecution and by citing multiple precedents supporting that principle. The cited cases involve individuals who sought to withhold their own property or data to impede prosecution efforts, including recognized examples such as Michael Deaver and Paul Manafort. The respondents contend those precedents concern parties defending their own prosecutions and therefore differ from the present circumstances. The response also describes investigative facts regarding Richman's past role with the FBI and allegations about his interactions with the media during the Clinton email matter.
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