Prosecutors go after James Comey’s attorney Patrick Fitzgerald

By Holmes Lybrand, CNN

(CNN) — Justice Department prosecutors are attempting to bring into court doubts that former FBI Director James Comey’s lead defense lawyer can represent him fairly, given Comey’s history being investigated, in a new legal dispute in the case that Comey’s team has already called an “effort to defame.”

Prosecutors suggested late Sunday that Patrick Fitzgerald could have “potential conflict and disqualification issue” in the case because Comey may have used the attorney to disseminate classified material in 2017 – an allegation Comey’s attorneys called “provably false.”

In a filing over evidence, prosecutors say “quarantined evidence” in the case contains communication between Comey and Fitzgerald.

“Based on publicly disclosed information, the defendant used current lead defense counsel to improperly disclose classified information,” prosecutors wrote in Monday’s filing.

Fitzgerald, citing a report from the Justice Department’s inspector general who investigated the allegations previously, noted that “the report ‘found no evidence that Comey or his attorneys released any of the classified information contained in any of the Memos to the media.’”

“After Mr. Comey was fired on May 9, 2017, he sought legal advice with respect to his termination and with regard to having witnessed behavior by the President that he considered unlawful,” Fitzgerald wrote in Monday’s responsive filing.

Comey was fired a few months after Trump took office, following his agency’s investigation into Russian meddling in the 2016 election.

“This is always a dicey situation,” former federal prosecutor and CNN senior legal analyst Elie Honig said of the DOJ’s filing on CNN this morning. “Look, you are never supposed to be both a lawyer and a witness in the same case.”

If Fitzgerald was “part of one of these chains of leaks that Jim Comey allegedly set up,” Honig said, “Fitzgerald, even if he’s just a witness, he generally cannot then be a defense lawyer in the case.”

The former FBI director had written “seven contemporaneous memoranda about his troubling interactions with President Trump,” in 2017, Fitzgerald noted, adding that Comey shared several of the memos with his attorneys, none of which, he claims, contained classified information.

“The memoranda were unclassified at the time they were shared with counsel–Mr. Comey both authored the memos and was an Original Classification Authority,” Fitzgerald wrote, adding that the government later chose to “upclassify” the memos.

Comey’s attorney concluded: “Contrary to the government’s assertion, a later upclassification does not change the fact that when the memoranda were initially transmitted, they were in fact unclassified.”

The-CNN-Wire
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