Federal prosecutors signaled Sunday that they may seek to fire Patrick Fitzgerald, James Comey’s lead defense attorney, over Fitzgerald’s alleged involvement in revelations to the media shortly after President Donald Trump fired Comey as FBI director in 2017.
In a filing Sunday night, prosecutors suggested to U.S. District Judge Michael Nachmanoff that Fitzgerald, Comey’s lawyer and close friend, might have an insurmountable conflict of interest as a result of the revelations.
Fitzgerald represents Comey in a criminal case ordered by Trump and filed last month in Virginia, where Comey faces two felony counts of making a false statement and obstructing a federal proceeding.
Prosecutors asked the judge to quickly approve a proposal for a “screen team” of lawyers to examine 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 proposed the “filter team” to the court last week, but in the new filing said the request has particular urgency because Fitzgerald played a role in Comey’s disclosure 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 an issue of conflict and disqualification for the current lead defense attorney.”
The new filing lacks details but references a 2019 Justice Department Office of Inspector General report that found that Fitzgerald acted as an intermediary when Comey attempted to bring information to the media about what he viewed as improper efforts by Trump to get him to pledge allegiance 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 an attempt to ensure that a special prosecutor 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 faulted him for sharing confidential investigative information with outsiders and the media, but also found no evidence “that Comey or his lawyers disclosed the classified information contained in any of the memos to members of the media.”
The report also noted that the FBI took steps to delete materials Fitzgerald received from his email accounts, and that Fitzgerald, a former federal prosecutor in Chicago, cooperated “voluntarily and quickly.”
The Justice Department, during the first Trump administration, declined to prosecute Comey or anyone else for 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 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 prosecution’s filing, which came a day before Comey’s lawyers file their first substantive motions in the case. Comey’s lawyers will seek to dismiss the case on the grounds of selective and vindictive prosecution, as well as the fact that the Trump-appointed prosecutor who brought the case, Lindsey Halligan, was not legally installed as acting U.S. attorney for the Eastern District of Virginia.
Screening 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 end up under scrutiny by investigators. The team’s job is to review the contents of phones or computers seized during a criminal investigation and rule out any material that may 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’s report, but offered a link to a version provided on the Wayback Machine from the Internet Archive, a nonprofit organization. The Justice Department’s 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 shut down an umbrella group, the Council of Inspectors General on Integrity and Efficiency.