DOJ Moves to Oust Comey's Lawyer Over Leak Conflict

Justice Department prosecutors indicated they may seek to have Patrick Fitzgerald removed as James Comey's lead defense attorney.

In a late Sunday filing, prosecutors asked U.S. District Judge Michael Nachmanoff to consider whether Fitzgerald, a longtime friend, confidant, and current defense lawyer for the former FBI director, has a conflict of interest that could prevent him from continuing in the case, Politico reported.

The concern, prosecutors said, stems from Fitzgerald's role in the 2017 episode when Comey sought to share details from his private memos about President Donald Trump with the media.

Prosecutors Tyler Lemons and Gabriel Diaz wrote that "based on publicly disclosed information, the defendant used current lead defense counsel to improperly disclose classified information," Politico reported.

They added that this "raises a question of conflict and disqualification for current lead defense counsel."

The filing references an eight-year-old DOJ Inspector General (OIG) report that examined Comey's handling of the memos and Fitzgerald's limited involvement in transmitting information about them.

Comey, who served as FBI director until Trump fired him in 2017, was indicted last month in the Eastern District of Virginia on two felony counts, making false statements, and obstructing a federal proceeding.

Prosecutors allege Comey lied during a 2020 Senate Judiciary Committee hearing when he denied authorizing or being involved in leaks related to the FBI's Trump-Russia investigation.

The new motion from prosecutors focuses less on Comey's alleged false statements and more on Fitzgerald's history with his client.

In 2019, the OIG found that while Comey violated FBI policy in sharing his memos with associates, there was no evidence that he or his lawyers leaked classified material to the press.

Fitzgerald, a former U.S. Attorney in Chicago known for his role in prosecuting former Illinois Gov. Rod Blagojevich, was described in the report as having "voluntarily and promptly" cooperated when the FBI sought to recover the materials from his possession.

Prosecutors now argue that Fitzgerald's involvement could create an "insurmountable conflict of interest."

To determine the extent of that potential conflict, they've asked the court to approve a "filter team" of government lawyers to review relevant evidence while protecting Comey's attorney-client privilege.

Filter, or "taint," teams are commonly used in sensitive federal cases involving attorneys or public officials to prevent investigators from accessing privileged communications.

As the Washington Examiner noted, prosecutors urged the court to move swiftly, arguing that the review could help clarify "whether communications from the same period covered by the OIG report contain exculpatory or inculpatory evidence relevant to the defense and the government."

Last week, the Examiner reported a federal judge in the Eastern District of Virginia ordered prosecutors to turn over all discovery required under federal law to Comey's legal team.

According to CNN on Oct. 9, Fitzgerald and co-counsel planned to file motions to dismiss the case, arguing selective and vindictive prosecution and challenging the legality of the Trump-appointed prosecutor overseeing it.

Interim U.S. Attorney Lindsey Halligan, a former Trump lawyer who was sworn in just days before Comey's indictment, personally presented the case to a grand jury.

Comey's attorneys contend Halligan's appointment violates the Federal Vacancies Reform Act, which limits interim U.S. attorney appointments to 120 days. They were expected to argue that Halligan's tenure had expired by the time she brought charges, rendering her authority invalid and the indictment improper.

Halligan's role has drawn scrutiny from legal scholars who note that several of Trump's previous interim U.S. attorney appointments have been struck down in other federal districts.

If Nachmanoff agrees that Halligan's appointment was unlawful, it could place the Comey case in jeopardy, though courts rarely dismiss indictments outright on such grounds.

Fitzgerald has not commented publicly on the Justice Department's filing. Comey's trial is currently set to begin Jan. 5, 2026, in Alexandria, Virginia.