Federal prosecutors are raising alarms over what they call an “extraordinary” conflict of interest in James Comey’s defense team, alleging the former FBI director hired a possible witness in his own criminal case to represent him and help keep key evidence under wraps.
In a late Sunday filing, prosecutors in the Eastern District of Virginia told U.S. District Judge Michael Nachmanoff that Comey’s lead attorney, former Chicago U.S. Attorney Patrick Fitzgerald, may need to be disqualified because of his alleged role in the same 2017 media leaks that underlie the government’s case. Fitzgerald, they said, was involved in the “improper disclosure of classified information” at Comey’s direction shortly after President Donald Trump fired him from the bureau in 2017.
The government asked the court to approve a “filter protocol” to allow a neutral team to review seized communications between Comey and several lawyers, including Fitzgerald, to determine whether the material is privileged or evidence of misconduct.
“Based on publicly disclosed information, the defendant used current lead defense counsel to improperly disclose classified information,” prosecutors wrote.
A case rooted in 2017 memo leaks
Comey, 64, was indicted on Sept. 25 for allegedly making false statements and obstructing a congressional proceeding related to his 2020 Senate testimony about the FBI’s Trump-Russia investigation. He pleaded not guilty earlier this month, insisting he never authorized leaks to the press and accusing the Justice Department of mounting a vindictive prosecution encouraged by Trump.
According to a DOJ Office of Inspector General report from August 2019, Comey leaked copies of his personal memos that documented conversations he had had with Trump to at least three attorneys — David Kelley, Fitzgerald, and Daniel Richman — and later tapped all three as his personal lawyers. The memos contained detailed accounts of Oval Office meetings and one-on-one calls in which Trump allegedly urged leniency for then-national security adviser Michael Flynn.
Prosecutors now argue Comey is repeating the pattern that started with that arrangement. Because Fitzgerald is now representing Comey in the criminal case stemming in part from those very disclosures, the government says Fitzgerald’s presence on the defense team “raises a question of conflict and disqualification.” The FBI later concluded that some of the memos shared with the trio contained information classified at the “confidential” level and moved to delete them from the attorneys’ computers in early 2018, underscoring the seriousness of the breach.
“Before litigating any issue of conflict or disqualification, the parties should have access to all relevant and non-privileged information,” prosecutors wrote in their Sunday night filing. “The sooner that the potentially protected information is reviewed and filtered, the sooner the parties can make any appropriate filings with the Court.”
OIG found Comey ‘set a dangerous example’
Former DOJ Inspector General Michael Horowitz’s 2019 report described Comey’s actions as a serious breach of policy, saying he “set a dangerous example” for FBI employees by retaining and leaking government documents for “a personally desired outcome.” The watchdog said Comey kept four of seven memos in a personal safe at home after his firing and failed to notify the bureau he had done so.
Although the Horowitz report found no evidence that Comey or his lawyers shared classified information with the media, it concluded that his handling of official records violated FBI policy and DOJ regulations. Prosecutors at the time declined to bring charges, citing a lack of proof that Comey intentionally mishandled classified material.
One of the leaked memos described Comey’s February 2017 Oval Office meeting with Trump, in which the president allegedly said, “I hope you can see your way clear to letting Flynn go.” The contents of that memo, leaked through Richman to the New York Times, helped trigger the appointment of special counsel Robert Mueller.
Prosecutors have since charged Comey with lying to Congress about leaking, although the details of the DOJ’s case remain unclear.
How the leaks were shared
The inspector general said Comey emailed four memos from a personal account to Fitzgerald within days of his May 2017 firing. Fitzgerald then forwarded the messages to Kelley and Richman, both of whom were advising Comey at the time. Separately, Comey sent Richman a photograph of the Flynn memo from his cellphone.
Copies of the memos later released to Congress showed that four were classified as either “secret” or “confidential” following an FBI review led by counterintelligence chief Bill Priestap. Comey disputed the secret designation for one of them, though investigators found he never sought classification guidance from the bureau before sharing the material.
In a 2019 FBI interview, Richman said Comey had not authorized him to discuss the bureau’s Hillary Clinton email investigation with reporters but acknowledged Comey knew he sometimes engaged with the press.
First pretrial standoff comes to the forefront
Comey’s same 2017 relationships with close confidants are now at the heart of the government’s latest inquiry into whether Comey can keep his current lead counsel. Fitzgerald’s own involvement in transmitting Comey’s memos to other lawyers could make him a fact witness in the case, raising ethical questions about whether he can simultaneously defend his former client.
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The government disqualification effort comes on the heels of Comey’s move last Friday to hire an additional attorney, Mueller counselor Michael Dreeben, who also assisted former special counsel Jack Smith during his case against Trump last year over alleged election interference. Dreeben’s involvement could present another unique conflict, though the government has yet to raise a specific issue with him being on the case.
Comey’s team has also accused the DOJ of mishandling privileged materials and is preparing to argue that the prosecution itself was politically motivated in additional filings Monday afternoon.