UPDATED: On Monday evening, Judge Michael Nachmanoff denied the Justice Department's request for an expedited ruling on their motion asking for a "filter team" to review evidence that could pose a potential conflict and merit disqualification of James Comey's lead defense attorney.
The judge noted that the DOJ "has had the materials at issue in its possession for several years and apparently failed to seek any guidance with respect to a filter protocol at any time before October 13," and similarly has been aware of Patrick Fitzgerald's role as Comey's defense attorney since late-September, yet "failed to raise any concern with lead counsel’s representation until the filing of the government’s motion to expedite on October 19."
As such, Comey now has the standard two-week timeframe to respond to the government's motion, with his next filing pertaining to that issue due October 27.
ORIGINAL STORY: The Department of Justice may try to block an attorney from representing former FBI Director James Comey in the federal government’s ongoing criminal case against him, according to a legal document filed Sunday evening in federal court in Virginia.
The DOJ’s new filing alleges that Patrick Fitzgerald, who previously held several high-profile roles within the Justice Department and is now representing Comey in private practice, may have a conflict of interest in the case.
RELATED STORY | Former FBI Director James Comey indicted for making false statement to Congress and obstruction
Fitzgerald “appears to be a party” involved in 2017-era media disclosures when President Donald Trump fired Comey as FBI Director, the DOJ claimed, suggesting Comey used Fitzgerald to “improperly disclose classified information” to journalists.
Fitzgerald’s alleged involvement in the media disclosure “raises a question of conflict and disqualification for current lead defense counsel,” the document states. The DOJ asked Judge Michael Nachmanoff, overseeing the case in the District Court for the Eastern District of Virginia, to swiftly implement a “filter team” to review evidence that might “inform a potential conflict and disqualification issue for the current lead defense counsel.”
Comey was indicted last month, not for the alleged leak itself, but on charges of lying to Congress and obstruction of a criminal proceeding concerning his disclosures to media. He pleaded not guilty to the charges, and has said he intends to fight the DOJ for "vindictive" and "selective” prosecution.
RELATED STORY | NY Attorney General Letitia James indicted in mortgage fraud case
In a response filed in court on Monday morning, Comey and his legal team said the judge had “no basis” to grant the DOJ’s motion.
The DOJ’s claim that Fitzgerald was involved in the improper disclosure of classified information is “provably false,” Comey’s lawyers wrote, pointing to a 2019 Special Counsel investigation that found “no evidence that Comey or his attorneys released any of the classified information contained in any of the Memos to members of the media.”
Comey’s filing goes on to oppose the government’s request for an expedited ruling on the “filter team” question, suggesting he is legally entitled to at least two weeks to review the motion and hinting that some of the government’s evidence may have been improperly obtained.
Significant portions of the response are redacted, and Comey’s lawyers submitted an additional exhibit as a part of their motion opposing the DOJ’s request, filed under seal. Reached by Scripps News, Fitzgerald declined to comment on the DOJ’s motion beyond the response filed in court.
Separately, Fitzgerald was expected on Monday to file Comey's formal opposition to his prosecution for being “vindictive” in nature, pointing to Trump’s many previous comments about the case. Should the judge rule in his favor, the charges against Comey might be thrown out altogether.
