The government seeks access to attorney-client communications regarding an earlier investigation of Comey’s mishandling of memos about contacts with Trump.
Last week, I did a series of three posts on the first round of defense pretrial motions in the Trump Justice Department’s prosecution of the FBI’s former director, James Comey, on a two-count indictment charging him with making a false statement in Senate testimony and (thereby) obstructing Congress.
Post 1 addressed Comey’s position that the indictment against him fails to state a crime and that his disputed testimony was provably truthful; there will be a more formal motion along those lines when the second round of defense motions is filed this week (it’s due on Thursday, October 30). Post 2 dealt with Comey’s motion to dismiss the indictment due to selective and vindictive prosecution, and Post 3 focused on the motion to dismiss based on what Comey claims is Attorney General Pamela Bondi unlawful appointment of Lindsey Halligan as interim U.S. attorney for the Eastern District of Virginia (EDVa). (That motion has been referred by the Fourth Circuit to Judge Cameron McGowan Currie, a senior Clinton appointee in the District of South Carolina; and it will be consolidated with a similar motion to be made by New York Attorney General Letitia James — who has also been indicted by Halligan.)
I said there would be a fourth post on first-round motions. In it, I intended to address, not another defense motion, but a prosecution motion, initially filed October 13, that would lay the groundwork for a subsequent motion to disqualify Patrick Fitzgerald, Comey’s lead defense counsel.
Prosecutors are asking the presiding EDVa judge, Michael Nachmanoff (a Biden appointee) to set up what’s called a “filter protocol” that would allow the government to review communications between Comey and Fitzgerald when the latter represented the former several years ago in the Justice Department’s investigation of Comey’s mishandling of memos he wrote about contacts with President Trump between January and April 2017. (As I’ll elaborate in a subsequent post, a filter protocol is used when evidence that prosecutors wish to review may be covered by the attorney-client privilege.)
As I explained at the time, that investigation was closed in 2019 without criminal charges by the DOJ in Trump’s first term; it was also the subject of a 2019 DOJ inspector general report that was scathing regarding Comey’s conduct. (The IG report indicated that Fitzgerald had no reason to know that six words in one of the four reports Comey sent him were classified — they’d been retroactively classified by the FBI weeks later — and that Fitzgerald cooperated in the FBI’s retrieval of the memos and purging of classified information from digital storage.)
EDVa prosecutors insinuate that Comey used Fitzgerald to improperly disseminate classified information; Comey and Fitzgerald assert that that claim is provably false.
In a three-page order last week, Judge Nachmanoff denied the government’s application for expedited consideration of its motion to review the Comey/Fitzgerald communications but directed the defense to respond by October 27 (today — or two weeks after the government’s October 13 motion). Since prosecutors are anxious for the court to address the matter, I anticipate there will be a prompt response by the government in the coming days.
Consequently, I’ve decided to table consideration of this motion until we get more information from the parties.