Prosecutors suggest they may move to disqualify Comey’s attorney

(NEW YORK) — Former FBI Director James Comey’s legal team responded Monday to a court filing from federal prosecutors that suggested they may move to have Comey’s lead attorney Patrick Fitzgerald disqualified from his false statements case, accusing the government’s attorneys of seeking to defame Fitzgerald by implying he engaged in criminal activity. 

In a court filing late Sunday night, prosecutors told U.S. District Judge Michael Nachmanoff that Fitzgerald’s alleged involvement in providing information to the media for Comey after Comey was fired by President Donald Trump in 2017 could “inform a potential conflict and disqualification issue.” 

Comey pleaded not guilty earlier this month to one count of false statements and one count of obstruction of a congressional proceeding related to his testimony before the Senate Judiciary Committee in 2020, amid what critics call Trump’s campaign of retribution against his perceived political foes. Vice President JD Vance has said any such prosecutions are “driven by law and not by politics.” 

In their filing late Sunday, prosecutors accused Comey of using Fitzgerald as an intermediary in 2017 to “improperly disclose classified information” related to memos Comey shared recounting several of his interactions with President Trump. 

An investigation by DOJ’s inspector general, however, found “no evidence that Comey or his attorneys released any of the classified information contained in any of the Memos to the media,” according to a report issued by IG Michael Horowitz.  

“There is no good faith basis for attributing criminal conduct to either Mr. Comey or his lead defense counsel,” Comey’s attorneys said Monday in their response. “Similarly, there is no good faith basis to claim a ‘conflict’ between Mr. Comey and his counsel, much less a basis to move to disqualify lead defense counsel.”

In their filing Monday, Comey’s attorneys further raised concerns about the government’s review of evidence that could be considered privileged communications between Comey and his lawyers, writing that it “appears … unlawful.” 

They have asked Judge Nachmanoff to deny a request by the DOJ to expedite a review of the evidence to determine which materials could be covered by privilege, writing that it’s important to give them ample time to respond to the motion “to avoid trampling on Mr. Comey’s legal privileges and to ensure that the government does not proceed with an unlawful review.”

The potential push to disqualify Fitzgerald, a close friend of Comey’s with a storied background as a former Justice Department official-turned-high-powered white collar attorney, comes as Fitzgerald has already said he plans to have a court invalidate President Trump’s pick for the prosecutor that brought charges against Comey, Lindsey Halligan. 

Fitzgerald was expected to make a series of filings Monday outlining his arguments that Halligan was unlawfully appointed as the U.S. attorney for the Eastern District of Virginia, just four days before she went to a grand jury and sought Comey’s indictment over what sources say were the objections of career prosecutors.

The grand jury ultimately voted to indict Comey on two of three charges sought by Halligan related to Comey’s 2020 congressional testimony regarding the FBI’s Russia probe and whether Comey authorized leaks of anonymous information to the media. Comey has denied all charges.

Fitzgerald was also expected to argue in a filing Monday that the prosecution of Comey was “vindictive” in nature and at the direct urging of President Trump, citing Trump’s extensive history of statements calling for Comey to be jailed. 

While legal experts argue there’s an extraordinarily high bar for tossing a prosecution based on the argument of malicious prosecution, Comey’s case should be a unique test of the legal standard, given Trump’s ousting of the office’s senior prosecutor who resisted bringing charges and his public call on social media for Attorney General Pam Bondi to act “now” to prosecute Comey and other political enemies. 

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