Prosecutors Make First Big Move In James Comey Case
Federal prosecutors have asked a judge in Virginia to fast-track a ruling that could determine whether former FBI Director James B. Comey’s longtime friend and attorney, Patrick Fitzgerald, can remain on his defense team — citing serious concerns over potential conflicts of interest and the handling of privileged materials.
The motion, filed October 19 in the Eastern District of Virginia, was submitted by Assistant U.S. Attorneys N. Tyler Lemons and Gabriel J. Diaz and urges U.S. District Judge Michael S. Nachmanoff, a Biden appointee, to approve the government’s proposed “filter protocol” — a procedure designed to segregate attorney–client communications before prosecutors gain access to seized evidence.
According to Politico, the request underscores prosecutors’ fears that some of the materials recovered through a court-authorized warrant may include privileged correspondence between Comey and his own legal counsel — communications that could directly implicate Fitzgerald, who has served as Comey’s close confidant for years.
The dispute strikes at the core of one of the most politically charged prosecutions in recent history. Comey, who was indicted on September 25, 2025, faces two felony counts — making false statements and obstructing justice — tied to allegations that he misled Congress about FBI leaks and obstructed legislative oversight related to the Trump–Russia and Clinton email investigations.
Prosecutors said in their motion that the evidence in question “may contain information that could either benefit or implicate Mr. Comey,” noting that it is essential to resolve potential attorney conflicts before trial begins.
“Both the Sixth Amendment and the Virginia Rules of Professional Conduct invite, indeed compel, prosecutors to alert a trial court to a defense attorney’s potential or actual conflict,” the motion stated.
The case centers partly on Comey’s testimony before the Senate in September 2020, where he reaffirmed his 2017 denial that he had ever authorized leaks to the media. Prosecutors allege those statements were false — and that Comey obstructed Congress by deliberately misleading lawmakers.
The Justice Department’s 2019 Inspector General report previously concluded that Comey “failed to live up to his responsibility” to protect government information and had used confidential FBI memos to “create public pressure for official action” after his 2017 firing by President Donald Trump. While prosecutors declined to bring charges at the time, the report’s findings are now key to the government’s case.
Fitzgerald’s involvement complicates matters further. As Comey’s legal adviser during the period when the memos were leaked, Fitzgerald could become a fact witness — a clear ethical conflict if he continues to represent Comey at trial.
Federal prosecutors have emphasized that the “filter team” process is necessary to ensure the government’s access to evidence does not violate attorney–client privilege, especially given the political sensitivity of the case.
Comey’s defense, meanwhile, argues the prosecution is “selective and vindictive,” calling the charges politically motivated. His attorneys claim the Biden Justice Department is bowing to political pressure after years of conservative criticism over the FBI’s conduct during Trump’s first term.
Comey pleaded not guilty earlier this month and remains free pending trial. His arraignment drew national attention, though Deputy Attorney General Todd Blanche dismissed speculation that prosecutors intended to arrest or publicly “perp walk” the former FBI chief.
“Mr. Comey has been directed to appear, and I expect that he will,” Blanche told Fox News. “The noise from MSNBC and from retired agents or unnamed anonymous sources about perp walks is just that. It’s just noise.”
If Judge Nachmanoff sides with prosecutors, Fitzgerald could be forced off the case — a stunning development that would leave Comey scrambling for new legal counsel as the trial date approaches.