Federal prosecutors have asked a Virginia judge to fast-track a decision on how potentially privileged materials in the criminal case against former FBI Director James B. Comey should be handled, citing possible conflicts involving his lead defense attorney, Patrick Fitzgerald, according to reporting in Politico.
Newsweek contacted Fitzgerald via email for comment outside of normal office hours on Monday.
Why It Matters
The bid to fast-track the decision could determine whether his longtime friend and lawyer, Fitzgerald, stays on the defense team. The move raises questions about attorney-client privilege, possible conflicts of interest, and the integrity of a prosecution that Comey’s team has already labeled politically driven.
At stake is not only who represents Comey as he faces charges of making false statements and obstructing justice, but also how the Justice Department manages sensitive evidence and perceptions of fairness in one of the most politically charged cases in years.
What To Know
Prosecutors Seek Fast-Track Review of Privileged Evidence
In a motion filed October 19 in the Eastern District of Virginia, Assistant U.S. Attorneys N. Tyler Lemons and Gabriel J. Diaz urged Judge Michael S. Nachmanoff to rule quickly on the government’s proposed “filter protocol,” a procedure that would allow a separate team of lawyers to review and isolate privilege-protected data communications before prosecutors access them.
Prosecutors said the evidence, taken from a lawyer under a court-approved warrant, could include information that helps or hurts Comey—and could affect whether Fitzgerald can stay on as his attorney.
The government’s filing comes less than a month after Comey was indicted on two felony counts: making false statements and obstruction of justice.
The indictment, returned September 25, 2025, marks a rare criminal case against a former FBI director.
Comey’s lawyers have indicated they will seek to dismiss the charges on grounds of selective and vindictive prosecution.
According to the motion, certain communications in the seized material include exchanges between Comey and several attorneys, one of whom appears to be Fitzgerald.
Prosecutors cited case law suggesting courts must address potential attorney conflicts before trial to avoid disruption.
“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.
Conflict Questions Surround Comey’s Lead Attorney
The government’s concern centers on Fitzgerald’s reported involvement in Comey’s handling of FBI memoranda following his 2017 dismissal.
A 2019 report by the Justice Department’s Office of the Inspector General found that Comey “failed to live up to [his] responsibility” to safeguard sensitive information and that he used the documents “to create public pressure for official action.”
While the report concluded that Comey’s disclosures violated internal policies, it also noted that prosecutors declined to bring charges after determining no classified information had been released to the media.
The Inspector General’s report detailed how, after his firing, Comey provided copies of four memoranda to his attorneys, including Fitzgerald, and separately directed another lawyer and friend, Columbia Law School professor Daniel Richman, to share the contents of one memo with The New York Times.
That document later marked “For Official Use Only,” described a February 2017 conversation in which then-President Donald Trump expressed “hope” that Comey would “see [his] way clear to letting [Michael] Flynn go,” referring to the former national security adviser.
Prosecutors in the current case say the seized evidence may shed light on Fitzgerald’s role in those disclosures.
“Based on publicly disclosed information, the defendant used current lead defense counsel to improperly disclose classified information,” they wrote, citing the Inspector General’s findings.
They added that expediting review of the quarantined evidence would “avoid potential delay” and ensure both sides have access to relevant, nonprivileged information before litigating any disqualification motion.
Inside the Justice Department’s Evidence Review Process
In an earlier motion filed October 13, the Justice Department’s filter team—composed of prosecutors unaffiliated with the trial team—described a proposed protocol to “review, identify, segregate, and disclose” sensitive communications while allowing Comey to assert any applicable legal protections.
The government said the defense objected to implementing the protocol, preferring instead to challenge the underlying search warrants first.
Filter teams are commonly used in cases involving attorneys or government officials to prevent prosecutors from accessing privileged communications.
Courts in several circuits, including the Fourth Circuit, have approved similar procedures.
The Virginia prosecutors argued that their proposal “strikes a balance” between preserving privilege and allowing the case to proceed efficiently.
Fitzgerald, a former U.S. attorney in Chicago and longtime friend of Comey, declined to comment on the government’s filing, according to Politico, which first reported the development.
The outlet noted that Fitzgerald was among those who received electronic copies of Comey’s memos in 2017 and later cooperated with the FBI’s request to delete those materials from his email accounts.
Comey’s legal team is expected to respond with substantive motions this week, including challenges to the legality of the prosecution and the appointment of U.S. Attorney Lindsey Halligan, a Trump appointee.
Judge Nachmanoff has not yet ruled on the government’s request for expedited consideration.
The Justice Department’s push for a quick ruling underscores the high-profile nature of the case, which intertwines issues of classified information, attorney-client privilege, and potential conflicts of interest—all set against the backdrop of Comey’s tumultuous tenure and dismissal during the Trump presidency.
What People Are Saying
Gene Rossi, a former federal prosecutor said October 8, 2025: “In this case, the facts before the indictment…provide strong factual evidence that Mr. Comey is the victim of either selective or vindictive prosecution.”
Harry Litman, a former U.S. attorney said: “Whoever’s signature is on the bottom of an indictment—if they somehow force one through—is going to be subject to really serious professional sanctions.”
What Happens Next
James Comey’s criminal case hinges on Nachmanoff’s ruling over the Justice Department’s request to implement a filter protocol that would determine how potentially privileged evidence is handled.
If approved, a separate team will review seized materials to decide what prosecutors can see, a process that could clarify whether Comey’s lead attorney, Fitzgerald, faces a conflict of interest over his past involvement in the 2017 memo disclosures.
Meanwhile, Comey’s defense is preparing motions to dismiss the charges on claims of political targeting and improper appointment of the U.S. attorney.
Depending on the judge’s decisions, the outcome could reshape the defense team, the case timeline, and public perceptions of the prosecution’s fairness.
