Federal prosecutors signaled Sunday that they may seek to boot Patrick Fitzgerald, James Comey’s lead defense attorney, because of Fitzgerald’s alleged involvement in disclosures to the media shortly after President Donald Trump fired Comey as FBI director in 2017.
In a submission Sunday evening, prosecutors suggested to U.S. District Judge Michael Nachmanoff that Fitzgerald, Comey’s lawyer and close friend, could have an insurmountable conflict of interest as a result of the disclosures.
Fitzgerald is representing Comey in a criminal case ordered up by Trump and brought last month in Virginia, where Comey faces two felony charges for making a false statement and obstructing a federal proceeding.
The prosecutors asked the judge to quickly approve a proposal for a “filter team” of lawyers to sift through evidence in Comey’s criminal case that could clarify Fitzgerald’s role in the eight-year-old disclosures — without breaching Comey’s attorney-client privilege.
Prosecutors proposed the “filter team” to the court last week, but in the new filing they said the request has particular urgency because Fitzgerald played a role in Comey’s release of information that officials later deemed classified.
“Based on publicly disclosed information, the defendant used current lead defense counsel to improperly disclose classified information,” prosecutors Tyler Lemons and Gabriel Diaz wrote. “This fact raises a question of conflict and disqualification for current lead defense counsel.”
The new filing is short on details, but references a Justice Department Office of Inspector General report from 2019 that found Fitzgerald acted as a middleman when Comey sought to get information to the media about what he viewed as improper efforts by Trump to get him to pledge loyalty in the days before his firing.
About a month after Comey was fired, he acknowledged during Senate testimony that he asked another lawyer and friend, Columbia law professor Daniel Richman, to give versions of his memos to The New York Times in a bid to make sure a special counsel was named to investigate Trump’s conduct.
The inspector general report found that some of the information Comey shared with his attorneys was classified and faulted him for sharing sensitive investigative information with outsiders and the media, but also found no evidence “that Comey or his attorneys released any of the classified information contained in any of the memos to members of the media.”
The report also noted that the FBI moved to delete the materials Fitzgerald received from his email accounts — and that Fitzgerald, a former U.S. Attorney in Chicago, “voluntarily and promptly” cooperated.
The Justice Department, during the first Trump administration, declined to prosecute Comey or anyone else over the handling or disclosure of Comey’s memos about his conversations with Trump.
However, last month, Comey was charged with making false statements and obstruction of Congress. The charges appear to relate to Comey’s alleged denial of involvement in other leaks during testimony to a Senate committee in 2020.
Fitzgerald declined to comment Sunday on the prosecution’s filing, which came one day before Comey’s lawyers are scheduled to file their first substantive motions in the case. Comey’s lawyers are set to seek to dismiss the case on grounds of selective and vindictive prosecution as well as on the grounds that the Trump-appointed prosecutor who brought the case, Lindsey Halligan, was not lawfully installed as the interim U.S. Attorney for the Eastern District of Virginia.
Filter teams are a relatively routine but controversial aspect of many high-profile criminal cases involving government officials and other defendants who are lawyers or whose lawyers also wind up under investigators’ scrutiny. The team’s job is to review the content of phones or computers seized during a criminal probe and screen out any materials that could be subject to attorney-client privilege, executive privilege or other limits on prosecutors’ ability to access them.
Prosecutors did not provide the judge with a copy of the Inspector General report, but offered a link to a version of it provided on the non-profit Internet Archive’s Wayback Machine. The DOJ Inspector General’s office reported earlier this month that its website was frozen and then taken offline due to the Trump administration’s effort to shutter an umbrella group, the Council of the Inspectors General on Integrity and Efficiency.
