The lawyer defending James Comey against charges he lied to Congress might need to be kicked off the case over his alleged involvement in the same media leaks during the first Trump administration that got the former FBI director in trouble in the first place, federal prosecutors said Sunday.
Comey, 64, hired former Chicago US Attorney and pal Patrick Fitzgerald in the criminal case mounted against him in the Eastern District of Virginia last month following calls from President Trump for his prosecution.
The feds are now claiming that since the former FBI boss allegedly used Fitzgerald as a go-between with the press to leak information that was later determined to be classified — it “raises a question of conflict and disqualification” for the veteran lawyer, their Oct. 19 filing alleged.
“Based on publicly disclosed information, the defendant used current lead defense counsel to improperly disclose classified information,” prosecutors claimed.
The Department of Justice Office of Inspector General in an August 2019 report on Comey’s disclosure of sensitive investigative information found that he had sent four memos to Fitzgerald a week after his ouster from the bureau.
The memos were sent from a personal email account detailing private conversations he had with Trump between January and May 2017, which included claims that the 45th president asked for an investigation into Michael Flynn to be dropped.
Fitzgerald forwarded the memos to David Kelley and Columbia University law professor Daniel Richman, the FBI director’s “good friend” whom he later acknowledged to the Senate Intelligence Committee had been authorized to serve as an anonymous source to the press.
Comey told the DOJ inspector general that he retained all three as his personal lawyers “very shortly” after Trump fired the FBI director on May 9, 2017.
He also claimed to the federal watchdog that he believed there was “nothing classified” in the memos — though the FBI took steps to delete them from the lawyers’ computer accounts by January 2018.
The DOJ OIG’s scathing report found Comey “set a dangerous” example by making the public disclosures of sensitive FBI intel.
The Fitzgerald allegations came to light as the feds asked a judge to sign off on their proposal for a “filter protocol” in which a neutral team would be appointed to comb through evidence in the case to determine the extent of the lawyer’s alleged involvement — without breaking attorney-client privilege, Politico first reported.
The prosecutors asked US Judge Judge Michael Nachmanoff to rush his decision on the filter review.
Comey was hit with a two-count indictment on Sept. 25 charging him with making a false statement and obstruction of justice, connected to statements he made to the Senate in 2020.
He pleaded not guilty in an Alexandria, Va., federal court on Oct. 8 and has denied making authorized leaks to the press about the Trump probe or a separate investigation into former Secretary of State Hillary Clinton.
He’s pleaded not guilty and faces up to five years in prison if convicted.
Comey’s team has indicated they plan to filed papers by Monday seeking to get the case against him tossed out for the alleged unlawful appointment of new Eastern District of Virginia US attorney Lindsey Halligan.
Halligan, Trump’s former personal lawyer, was placed in the office last month after her predecessor Erik Siebert was ousted by the president for his reluctance to prosecutor New York Attorney General Letitia James.
Halligan filed charges against James too for alleged mortgage fraud and the AG is due in the Eastern District of Virginia on Friday to enter a plea.
Fitzgerald didn’t immediately return a request for comment Monday morning.
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