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Former FBI Director James Comey arrives to testify at a hearing of the Senate Select Committee on Intelligence, on Capitol Hill, on June 8, 2017. Brendan Smialowski/AFP via Getty Images
The Justice Department has signaled that it may attempt to remove one of former FBI Director James Comey’s defense attorneys over concerns about a purported conflict of interest in his ongoing case in Virginia.
Comey was indicted last month for allegedly lying to Congress about authorizing individuals outside of the FBI to serve as an anonymous source in reporting on one of the agency’s investigations. In a filing on Oct. 19, the Justice Department said that lead defense attorney Patrick Fitzgerald may have been party to some of the communications that serves as evidence. It also alleged that Comey “used current lead defense counsel to improperly disclose classified information.”
Comey’s attorneys responded on Oct. 20 by accusing the Justice Department of attempting to defame Fitzgerald. “The government’s assertion that Mr. Comey ‘used current lead defense counsel to improperly disclose classified information,’ and the implicit assertion that lead defense counsel and Mr. Comey engaged in criminal activity by doing so, is provably false,” the filing reads.
Both sides pointed to a report from the Justice Department’s Office of Inspector General from 2019.
That report concluded that Comey failed to live up to his responsibility to protect sensitive information but also said that “we found no evidence that Comey or his attorneys released any of the classified information contained in any of the Memos to members of the media.”
According to Comey’s attorneys, the former FBI director had shared four memos in 2017 with his attorneys and determined that they contained unclassified information. One of those memos was given a higher classification by the government just weeks later.
“A later upclassification does not change the fact that when the memoranda were initially transmitted, they were in fact unclassified,” Comey’s Oct. 20 filing reads.
The filings came as part of a broader battle over how to process the evidence in Comey’s case, which is scheduled for trial in January. Comey has pleaded not guilty and argued he was facing a vindictive prosecution. His attorneys have also asked the court fo dismiss the case on the alleged basis that the prosecutor, interim U.S. Attorney Lindsey Halligan, was illegally appointed.
Trump appointed Halligan after the departure of her predecessor, former interim U.S. Attorney Erik Siebert, who was probing allegations of mortgage fraud against New York Attorney General Letitia James.
The Justice Department’s filing on Oct. 19 was an attempt to expedite a ruling on its motion for a filter protocol, which would seek to provide a mechanism for the government to review evidence containing potentially privileged communications between Comey and his attorneys.
According to the administration, the evidence for filter review could contain exculpatory or inculpatory evidence and inform a potential disqualification issue for Fitzgerald. In the defense’s response, it said more time was needed to review certain materials.
“The defense needs the two weeks provided by the local rules to respond to the government’s motion by reviewing the relevant warrants and materials in discovery,” the Oct. 20 filing reads. “This is critically important to avoid trampling on Mr. Comey’s legal privileges and to ensure that the government does not proceed with an unlawful review.”
