Lawyers for James Comey are set to argue in Virginia court Wednesday that docs the feds seized five years ago can’t be used in the criminal case against the former FBI boss, who is charged with lying to Congress.
Comey, 64, is expected to attend a hearing in Alexandria, Va. federal court where his lawyers and prosecutors will argue over how to handle privileged communications between the former FBI boss and his lawyers — as both sides prepare for trial.
The ex-FBI director’s side says the correspondences were obtained by the feds through warrants from five years ago when they probed Comey for allegedly leaking confidential information — a case which was closed without charges ever being filed.
Comey was slapped with a two-count indictment on Sept. 25, accusing him of lying in testimony before the Senate Judiciary Committee on September 30, 2020.
He claimed he didn’t approve leaks to the press about the FBI investigation into 2016 presidential candidate Hillary Clinton. Comey was also charged with obstruction of justice.
Comey pleaded not guilty on Oct. 8 and claimed the case was mounted against him at the behest of President Trump in retaliation for the ex-FBI boss’ refusal to put the kibosh on the “Russiagate” probe into collusion between the candidate’s 2016 campaign and the Russian government — which ended up looming over the 45th presidency.
Comey is set to go on trial on Jan. 5, 2026, but he’s seeking to get the indictment against him thrown out on multiple grounds, including by claiming he’s the victim of vindictive prosecution and that the Lindsey Halligan, the interim US attorney in the Eastern District of Virginia, was unlawfully appointed.
The feds are seeking to install a so-called filter protocol, consisting of a team of prosecutors from another district to review Comey’s communications and parse which ones are covered by attorney-client privilege and which are fair game for the Virginia prosecutors to use as evidence in their case.
The feds say the filter protocol could reveal that Comey’s defense attorney, Patrick Fitzgerald, has a conflict of interest and should be booted from the case because he was purportedly involved in Comey’s alleged leaks of classified information to the media.
Meanwhile, Comey has suggested that prosecutors may have already violated his attorney-client privilege by viewing confidential correspondences between himself and his lawyers.
Comey denied that Fitzpatrick — the former US attorney in Chicago — has a conflict of interest and said he should remain on the case.
Prosecutors on Monday filed court papers opposing Comey’s motions to have the case tossed out on the basis that he was allegedly wrongfully targeted and that Halligan’s appointment was unlawful, releasing a trove of emails discussing media coverage of investigations before the FBI boss departed the bureau.
Comey and his pal Daniel Richman, a Columbia University law school professor, emailed “extensively” about the former FBI director’s decision to publicly discuss the investigation into Clinton, codenamed “Midyear Exam,” and reopen that probe weeks before the 2016 election based on new disclosures, according to the 43-page filing.
“Consistent with the above-described correspondence,” wrote Assistant US Attorney N. Tyler Lemons, sharing texts of emails in October and November 2016 as well as April 2017, “Richman corresponded extensively with members of the media regarding or on behalf of the defendant, including in an anonymous capacity.”
Trump fired Comey on May 9, 2017.
Lemons argued that the indictment against Comey was a genuine bid to hold a public official accountable and has nothing to do with President Trump allegedly having an axe to grind.
“The defendant is a former FBI Director who lied to Congress about his conduct while at the helm of the Nation’s primary federal law-enforcement agency,” Lemons’ brief from Monday read. “His prosecution implicates societal interests of the highest order.
And in a separate motion also filed Monday, Henry C. Whitaker, argued that interim US Attorney Halligan’s appointment was lawful and that the indictments against Comey, as well as a bank fraud case against New York Attorney General Letitia James, should both stand.
And even if there were a problem with Halligan’s appointment, Attorney General Pam Bondi “personally ratified the indictments to obviate any questions as to their validity.”
James and Comey both filed motions arguing that Halligan’s appointment was problematic because it wasn’t done with the advice of Congress and because Bondi had allegedly already used up her one appointment to that office when she put Erik Siebert in the interim position prior to Halligan.
Siebert resigned on Sept. 19 after the commander in chief accused him of refusing to prosecute James.
In the case, prosecutors allege when Comey was being questioned by Sen. Ted Cruz (R-Texas) during the 2020 Congressional hearing he falsely denied signing off on Richman acting as an anonymous source in news reports about the Clinton probe.
Comey in that hearing stated that he affirmed prior testimony to Sen. Chuck Grassley (R-Iowa) at a Judiciary Committee hearing in 2020, when he was asked directly about making unauthorized leaks to media.
An FBI investigative team also discovered “burn bags” and “copies of handwritten notes” from Comey earlier this year that cast doubt on the veracity of other testimony the ex-bureau chief gave to Republicans in that hearing.
“Of note, during that hearing, the defendant was questioned by Senator Graham of South Carolina and Senator Hawley of Missouri,” wrote Lemons, citing some evidence produced for the first time by prosecutors.
“The questions focused on whether the defendant remembered ‘being taught’ of ‘U.S. presidential candidate Hillary Clinton’s approval of a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private email server.’”
Lemon added: “The defendant responded by stating that ‘it doesn’t ring any bells with me’ and ‘I don’t know what that refers to’ and ‘I don’t remember receiving anything that is described in that letter.’”
Meanwhile, the copies of the handwritten notes contradict the testimony, with one Sept. 26, 2016, document stating: “HRC plan to tie Trump.”
The former FBI director’s attorneys filed another motion to dismiss last week, claiming the Texas Republican lawmaker’s question was too long and confusing and it wasn’t clear if he was referring to the FBI probe into “Russiagate” or into Clinton.
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