Federal prosecutors indicated Sunday that they may target Patrick Fitzgerald, James Comey's lead attorney, over Fitzgerald's alleged involvement in disclosures to the media shortly after President Donald Trump fired Comey as FBI director in 2017.
On Sunday evening, prosecutors suggested in a statement to U.S. District Judge Michael Nachmanoff that Fitzgerald, Comey's attorney and close friend, may have an insurmountable conflict of interest as a result of the revelations.
Fitzgerald is representing Comey in a criminal case ordered by Trump and filed last month in Virginia, where Comey faces two counts of making a false statement and obstructing a federal proceeding.
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 revelations — without violating Comey's attorney-client privilege.
Prosecutors introduced the “filter team” to the court last week, but in the new filing they said the request is particularly urgent because Fitzgerald played a role in Comey's release of information that officials later deemed classified.
“Based on disclosed information, the defendant used current lead counsel to improperly disclose classified information,” prosecutors Tyler Lemons and Gabriel Diaz wrote. “This fact raises an issue of conflict and disqualification for the current lead counsel.”
The new filing is scant in detail but points to a 2019 report from the Justice Department's Office of Inspector General that found Fitzgerald acted as an intermediary when Comey tried to get information from the media about what he viewed as improper efforts by Trump to get him to pledge loyalty in the days before his resignation.
About a month after Comey was fired, he acknowledged during Senate testimony that he had asked another lawyer and friend, Columbia law professor Daniel Richman, to give versions of his memos to The New York Times in an effort to ensure a special counsel was appointed to investigate Trump's conduct.
The inspector general's report found that some of the information Comey shared with his lawyers was classified and that he had shared sensitive investigative information with outsiders and the media, but it also found no evidence “that Comey or his lawyers had released any classified information in any of the memos to members of the media.”
The report also noted that the FBI deleted materials Fitzgerald received from his email accounts — and that Fitzgerald, a former U.S. attorney in Chicago, cooperated “voluntarily and immediately.”
The Justice Department declined to prosecute Comey or anyone else during the first Trump administration 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 obstructing Congress. The charges appear to be related to Comey's alleged denial of involvement in other leaks during testimony before a Senate committee in 2020.
Fitzgerald declined to comment Sunday on the plaintiff's filing, which came a day before Comey's lawyers were set to file their first substantive motions in the case. Comey's attorneys will seek to dismiss the case on grounds of selective and vindictive prosecution and on the grounds that the Trump-appointed prosecutor who brought the case, Lindsey Halligan, was not lawfully installed as 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 suspects who are lawyers or whose lawyers also come under the scrutiny of investigators. The team's job is to review the contents of phones or computers seized during a criminal investigation and to screen materials that might be subject to attorney-client privilege, executive privilege or other restrictions on prosecutors' ability to access them.
Prosecutors did not provide the judge with a copy of the inspector general's report, but offered a link to a version of it on the nonprofit Internet Archive's Wayback Machine. The DOJ's Office of Inspector General reported earlier this month that its website was frozen and then taken offline due to the Trump administration's efforts to shut down an umbrella group, the Council of Inspectors General for Integrity and Efficiency.
