Well, it was also recently decided that the “friend”, who was not referred to as “lawyer” during congressional testimony, would be the “lawyer” to try and hide details of unprivileged conversation under legal privilege. (IMO)
Exactly. There is a reason this was recently discovered.
The privilege exerted may be open to challenge. In Comey’s case there is a possibility that the privilege would fail for the reason you gave, but also that the “attorney” took documents subject to the “privileged” discussion and passed them on to a party outside the attorney-client relationship and was not used in furtherance of the privilege.
For example, in a tort case, the attorney sends medical report brought to him by client to a doctor to get professional opinion as to the client’s condition. That report to doctor would be privileged. In Comey’s case, he purposely wanted the contents of the documents to be put into the public domain in order to help get a SP appointed to go after Trump. Even if he loses on the contents of the documents, he wants any conversations with the “attorney” to be protected. The “attorney” also has reason for wanting the privilege to be asserted.
Comey’s “attorney” may himself become a witness. And Comey may have to hire other lawyer$$$ to try to protect his asserted (sham) privilege.
Not sure if it was argued that the documents held by Mueller were in fact dislosed previously and surreptitiously by Comey to the public via the attorney, and therefore the claim that they were not subject to FOIA protection as Comey as FBI director put them in the public domain. He cannot pick and choose the “public” under FOIA.