Prosecutors suggest James Comey’s attorney could be disqualified

Federal prosecutors suggested Sunday night that they may seek to disqualify former FBI Director James Comey’s attorney.

Public information shows Patrick Fitzgerald, the lawyer representing Comey, allegedly helped the former FBI director “improperly disclose classified information,” prosecutors wrote in a Sunday filing.

Comey faces charges for allegedly lying to Congress about authorizing someone to be “an anonymous source in news reports” during his September 2020 testimony and obstruction of a congressional proceeding.

Comey’s attorneys argued in a Monday filing it is “provably false” that Comey used Fitzgerald to disclose classified information.

“In short, there is no good faith basis for attributing criminal conduct to either Mr. Comey or his lead defense counsel,” Comey’s attorneys wrote Monday. “Similarly, there is no good faith basis to claim a ‘conflict’ between Mr. Comey and his counsel, much less a basis to move to disqualify lead defense counsel.”

Comey sent copies of four memos to Fitzgerald in May 2017, shortly after being fired by President Donald Trump, instructing him to share them with his other attorneys, David Kelley and Daniel Richman. Comey directed Richman to share the contents of one of the memos detailing a conversation with Trump with a New York Times reporter, according to a 2019 Department of Justice (DOJ) Office of Inspector General (OIG) report.

Person 3 in the indictment, who Comey allegedly authorized to be an anonymous source, likely refers to Richman, according to several reports.

“Comey told the OIG that he did not notify anyone at the FBI that he was going to share these Memos with anyone, and did not seek authorization from the FBI prior to emailing these four Memos to Fitzgerald,” the OIG report states. “Comey told the OIG that he deleted his electronic versions of the email and the PDF attachment that he sent, and did not retain a hard copy of either.”

In their response Monday, Comey’s attorneys argued that the four memos were “unclassified at the time they were shared with counsel.”

The OIG report notes that the memo shared with the NYT “did not contain any classified information.” However, the report concluded that Comey “set a dangerous example for the over 35,000 current FBI employees—and the many thousands more former FBI employees—who similarly have access to or knowledge of non-public information.”

“This fact raises a question of conflict and disqualification for current lead defense counsel,” prosecutors wrote Sunday.

Some evidence in the government’s possession includes information potentially protected by attorney-client privilege, prosecutors told the judge Oct. 13. They requested approval for a “filter team” that could sift through and segregate any evidence subject to privilege claims.

Prosecutors told the judge in their Sunday filing that they need him to rule quickly on the “filter protocol” to avoid delaying the case.

“Some of the communications in the potentially protected material are from the same time as the focus of the DOJ OIG report,” the government wrote. “Before litigating any issue of conflict or disqualification, the parties should have access to all relevant and non-privileged information. The sooner that the potentially protected information is reviewed and filtered, the sooner the parties can make any appropriate filings with the Court.”

Defense attorneys opposed the government’s request to expedite a ruling.

“The defense shares the government’s desire to avoid delay,” they told the judge. “But that desire does not give the government license to conduct an unlawful review or run roughshod over Mr. Comey’s privilege.”

“[T]he government’s effort to defame lead defense counsel provides no basis to grant the motion,” Comey’s attorneys wrote.

Fitzgerald declined to comment, pointing the DCNF to the defense’s public filing.

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