They laugh about it now--Comey, the U.S. attorney for the Southern District of New York, and Fitzgerald, the U.S. attorney for the Northern District of Illinois. But at the time, Fitzgerald was in the midst of his first trial, a prosecution of a New York drug dealer. He had built to a climax--a Perry Mason moment, he thought--when he would demand of the drug dealer--"Is this your voice?"--and dramatically play for the jury a tape of the dealer plotting the crime with an undercover informant. He pressed the play button, but the tape wouldn't budge. Comey, his supervisor, crawled around the floor of the courtroom, trying different plugs--all to no avail. The recorder didn't respond. After several ghastly minutes, Fitzgerald proceeded, tapeless, abashed, but determined. Jury members, who evidently figured out that the power switch on the recorder was in the wrong position, later played the tape for themselves and convicted the dealer. "They couldn't wait to hear that tape," Fitzgerald says. Adds Comey: "Afterwards, we said it was part of our strategy."
Today Comey and Fitzgerald are, well, far better connected. When they press buttons, investigations follow. They run two of the most important, most watched federal offices in the nation. They ride point on white-collar political corruption and antiterrorism prosecutions. They're still relatively new to their tasks. In the past 16 months, Comey returned to office in Manhattan and, in a seamless transition, took command. A maverick U.S. senator brought Fitzgerald to Chicago with the expectation that he would stir it up-- and he has, completing a major reorganization and reinvigorating his troops with his own tirelessness.
It's too soon to judge their tenures. Comey's assistants have won guilty pleas from the founder of ImClone Systems Incorporated, Dr. Samuel Waksal--a man whose tabloid fame stems less from his biotech lab work and more from his ties to Martha Stewart, who is under investigation for her trades in ImClone stock. They've indicted top executives of WorldCom, Inc., and Adelphia Communications Corporation, and have inspired complaints from the defense bar because white-collar defendants were handcuffed and perp-walked like common hoods. In Chicago, Fitzgerald inherited a political corruption investigation that thus far has led to the anteroom of a former governor. And he chased a local Islamic charity whose president had been an associate of Osama bin Laden back in the 1980s. He promised to try the case himself, but settled for a very modest guilty plea three months ago, after the trial judge refused to admit key evidence.
Fitzgerald and Comey take obvious joy in the work they do. One is a lifer who doesn't like to think about the inevitable end of his term. The other is a natural politician, the sort who can move easily between public and private sectors--and already has. They are models for the young prosecutors we profile in this issue. But they're something else as well, something that informs the work they did then and the work they do now. Pat Fitzgerald and Jim Comey are best friends.
And funny. Interviewing Fitzgerald and Comey, both 42, is like sitting through a roast at the Friars Club. During the early 1990s, when Fitzgerald and Comey were both assistants in Manhattan, office opinion was split on the subject of who of the two of them was funnier. By the evidence of a two-hour talk with the two of them in Comey's office last December, they're still competing for the title. Comey is a charmer, the sort of man who, says his law school roommate, would come out of every job interview with the interviewer's arm draped over his shoulder. Metaphorically, at least. It's not easy to drape an arm over Comey's shoulders: He is 6 feet 8 inches, "freakishly tall," by his own description. He's also notoriously quick-witted. One famous piece of Comey lore exemplifies his style. He was prosecuting a racketeering case, and the defendant took the stand to tell a long and involved story that seemed to skate around all of the government's allegations. Comey had a legal pad full of questions to ask on cross-examination, but stood up and asked one that wasn't on the list: "Sir, I'm not going to hold you to a precise figure, but can you just tell the jury approximately how long it took you to make that story up?" The jury, Comey says he later found out, "thought I was hysterically funny."
Fitzgerald, a mere 6 feet 3 inches tall, has a quieter, less cutting style than his friend. He usually plays Comey's straight man, but every once in a while he'll surprise you with his own barb, usually directed at Comey. Comey says that when the two of them work together, Fitzgerald is the one who comes up with all of the ideas; among his friends and fellow prosecutors, Fitzgerald is known for an almost frightening brilliance. "But he's incredibly low-key about it," says Los Angeles real estate lawyer Anthony Bouza, an old friend. "He doesn't need to show the world how smart he is."
Fitzgerald and Comey both grew up in the New York area, Fitzgerald in Brooklyn and Comey in the suburbs. Both came from middle-class families; Comey's grandfather was a Yonkers cop and Fitzgerald's parents are Irish immigrants. Comey went to the College of William & Mary, where he met his wife, Patrice, and then to the University of Chicago for law school. Fitzgerald went to Amherst and Harvard. Their link to each other was John Goggins, a high school and college classmate of Fitzgerald who met Comey on the first day of law school at Chicago. Goggins and Comey became roommates, and, in 1984 Goggins introduced Comey to Fitzgerald at a beach house on the Jersey Shore. "John only had a couple of friends," cracks Comey, "so he thought we should get to know each other." Goggins, who is now the general counsel at Moody's Corporation, says he actually thought the two of them would get along in part because both already wanted to become federal prosecutors.
By 1987 Comey was an assistant in the Southern District of New York. Fitzgerald joined him in 1988, five months before the famous malfunctioning tape recorder episode. Four years later, the two tried the case that served as a prelude for the support they give each other in the jobs they have now. Comey was by then the deputy chief of the criminal division but was preparing to move his family to his wife's native Virginia. Fitzgerald had just agreed to take on a major prosecution, the trial of four defendants from the Gambino organized crime family. The indictment was the result of a five-year investigation, and the trial would involve dozens of witnesses from across the United States and Sicily--a perfect fit for Fitzgerald, with his uncanny memory for names, places, and events. But Fitzgerald would need cocounsel. One day he called Comey at home to talk about who should try the case with him. Comey's wife motioned at him to hang up. He did, and Patrice said, "You should do it." The move to Virginia was postponed, and Comey and Fitzgerald spent most of the next year together.
There was no textbook for presenting mass murderers as cooperating witnesses, so the two held long strategy sessions. "The advantage of trying the case with a close friend," Comey says. "[is that] you can talk about things without worrying about how you're going to look in front of the other guy. We each knew that we're both fools inside.... We'd talk through everything and make each other laugh."
The trial lasted six months. Comey and Fitzgerald thought it had gone well for the government, but the jury deadlocked, and a mistrial was declared. (Press accounts at the time speculated about jury tampering.) The prosecutors were devastated. "We lay down on the floor in my office," Comey says. "I felt like I'd been punched in the stomach."
"It's hard to describe how disheartening it was," Fitzgerald adds. "It was just"--he pauses and shakes his head-- "completely disheartening."
After the Gambino mistrial, their careers diverged. Comey, the family man, moved to Virginia and private practice, joining McGuireWoods. Fitzgerald spent six months in a sort of fog, preparing to retry the Gambino case with Richard Zabel. Three of the defendants, including the two Gambinos, made plea deals. Fitzgerald and Zabel went to trial with the fourth defendant. Comey tells a story to illustrate the depth of Fitzgerald's funk. Zabel, the young prosecutor, had been doing most of the witness examinations at trial. "Pat hadn't written him a note for the entire trial," Comey says. "It's now the defense part of the case. Zabel sees Pat write a note on a yellow sticky and stick it to the edge of the counsel table. He thinks, 'Oh, he's engaged now. The great man, the legendary trial lawyer, has an idea for me.' With some ceremony he stops his questioning and says, 'Your Honor, may I have a moment?' He walks over and reads the note. It says, 'Is there beer in the fridge?' "(Zabel, now a partner at Akin Gump Strauss Hauer & Feld, confirms the story; Fitzgerald laughs and says, "I don't remember it, but I'm not denying it.")
Fitzgerald only returned to full strength with the prosecution of a blind terrorist sheikh named Omar Abdel Rahman. After the first World Trade Center bombing, in 1993, investigators uncovered a terrorist plot, involving the blind sheikh and other conspirators, to blow up bridges and tunnels in the New York area. The new U.S. attorney, Mary Jo White, asked Fitzgerald, just named head of the narcotics division, to head the trial team. And so Fitzgerald found his calling.
Over the next several years, as Comey and his family settled into life in Virginia, Fitzgerald, a bachelor with a ferocious work ethic, threw himself into terrorism prosecution. With Fitzgerald as the cohead of the office's newly formed terrorism unit, Manhattan AUSAs convicted the blind sheikh and his fellow defendants; the World Trade Center bombers who had at first evaded arrest; members of a terrorist cell that had plotted to blow up American airplanes flying out of the Philippines; and several of the African embassy bombers. Fitzgerald's unit indicted Osama bin Laden in 1998, three years before the second World Trade Center disaster. No one worked harder than Fitzgerald, who sacrificed his personal life to the job. He seemed to remember everything, putting together slivers of information from various sources to make connections other people missed.
By the time of the embassy bombing trials in 2001, says former U.S. attorney White, no one in the country knew more about Al Qaeda than Fitzgerald, who had become well known in the U.S. Department of Justice for his expertise. "You never felt comfortable making a decision without Pat's input," agrees former deputy attorney general Eric Holder, now a partner at Covington & Burling. "He had such vast knowledge of Al Qaeda and terrorism."
Fitzgerald was one of the few assistant U.S. attorneys, says Holder, to be "on the radar screen in Washington at headquarters." For entirely different reasons, Jim Comey was another.
Comey's heart was never in private practice. He'd made partner at McGuireWoods after two years, but when Fitzgerald would call down to Virginia, Comey's wife would tell him that Jim wasn't happy. The Comey family wanted to stay in Virginia, where they'd gotten involved in their church and kids' athletics. Comey applied to become an AUSA in the Eastern District of Virginia. In 1996 Helen Fahey, the U.S. attorney in that office, hired him to supervise her Richmond office.
Richmond was notoriously violent in the mid-1990s, with a homicide rate that put it among the most murderous of American cities. Soon after he joined the office, Comey, Fahey, and an ad hoc group that included local police officials met to discuss the problem. From the meeting emerged a strategy. Most of the murders were being committed with guns--and many were committed by people who already had felony convictions, and were thus prohibited from owning guns. Federal law mandates stiff sentences for illegal gun possession. So, despite some initial resistance from the judges in their district, Comey and Fahey resolved to prosecute gun possession cases in federal court, which would put offenders in federal prison for long stretches.
Prosecutors advertised the new policy, called Project Exile, all over the city, hoping to dissuade felons from carrying guns. Comey became the face of federal law enforcement in Richmond: He persuaded the Justice Department to deploy additional Federal Bureau of Investigation and Bureau of Alcohol, Tobacco and Firearms agents to Richmond; he arranged meetings between business leaders and community activists; he enlisted the support of local police. Homicides dropped from 140 in 1997 to 72 in 1999. "Once [Comey] got the resources, he ran with it," says Holder. "We saw a very dramatic decrease in violent crime in Richmond."
Jim Comey’s friends, Fitzgerald among them, say they always thought Comey, so charismatic and confident, was going places. When George W. Bush was elected president, Comey applied to become the U.S. attorney for the Eastern District of Virginia. The resume he sent to Virginia's two Republican senators was impressive: years as a federal prosecutor in New York and Virginia, a stint in private practice, a crime prevention program so successful that the Bush administration planned to replicate the Richmond experiment nationwide. Comey was one of the half-dozen candidates Virginia's senators referred to the White House, but so was Paul McNulty--a Justice Department official from the first Bush administration who was running the Justice transition for the new president. McNulty got the job. Comey figured he'd stay in Richmond, working on the investigation of the terrorist bombing of Khobar Towers in Saudi Arabia that FBI director Louis Freeh had steered to him. McNulty says, however, that he made it clear to Comey that he wouldn't be the de facto Richmond U.S. attorney anymore. "I said, 'I'm different from Helen,' "says McNulty. "He was wonderful about it. [But] it was always going to be a little awkward."
Even as Fitzgerald commiserated with Comey about the Virginia job, his own career received a wholly unexpected jolt. Fitzgerald was prosecuting what he considered the case of a lifetime, leading the trial of the captured Al Qaeda terrorists who had killed and injured hundreds of victims in the bombing of two U.S. embassies in Africa. Comey tells the story: In the midst of the trial Fitzgerald got a call from the office of Senator Peter Fitzgerald of Illinois. The senator had announced that he intended to look outside of Chicago for a new U.S. attorney, conducting a nationwide search for a prosecutor whose independence and professionalism were above reproach. Senator Fitzgerald sought recommendations from law enforcement officials, U.S. attorneys, private lawyers. Among those he talked to was the FBI director. "The senator called Louis Freeh and asked him, 'Who is the best prosecutor in the country?' "says press secretary Brian Stoller. "Freeh said, 'Pat Fitzgerald."'
"I never thought about being U.S. attorney when I was an assistant," says Fitzgerald, who served under three different U.S. attorneys. "It was like pitching for the Mets--a great job, but one you never think you're going to get to do."
He was worried about being distracted from the embassy bombing trial, but Comey, his friends in the terrorism unit, and Mary Jo White--who had also recommended him to the senator--prodded Fitzgerald to send in a resume and squeeze in an interview on a break from the trial. In May, Senator Fitzgerald called and said he was recommending to the White House that Fitzgerald be named U.S. attorney in Chicago, a city he'd visited for one day, in 1982, for a wedding. "I was stunned," Fitzgerald says.
Comey's emotions were mixed. "I was so happy for Pat," he says. "But I was a bit of a jelly bean. I was a little jealous that he had this amazing opportunity and I was never going to get to be U.S. attorney."
In Washington, Comey had an angel. Mary Jo White had agreed to stay on as U.S. attorney in Manhattan until the conclusion of the embassy bombing trial. New York's Republican governor, George Pataki, and senior senator, Democrat Charles Schumer, were at an impasse over whom to recommend to succeed White. In the fall of 2001, Comey got a call from the White House. "I thought it was one of my wise guy friends," Comey says. "He said, 'How'd you like to be the U.S. attorney for the Southern District?"'
Comey says he still doesn't know just who in the Department of Justice or the Office of the White House Counsel promoted him for the job, but he wasted no time accepting the offer. Comey and his wife, who had told him this was the only job she'd be willing to leave Virginia for, packed up their five children and moved back to New York.
Luckily for Comey, who took over at the beginning of the Enron era of corporate scandal, white-collar crime and securities prosecution has always been the stronghold of the Manhattan U.S. attorney's office. True to its history, the Southern District--otherwise known as the Sovereign District-- leaped into action. In January 2002 Comey's prosecutors began investigating ImClone. In February they took on the Adelphia Communications Corporation investigation. In March, WorldCom. Comey's tenure hasn't been without controversy. There have been jurisdictional squabbles--with New York State attorney general Eliot Spitzer over the investigation of Credit Suisse First Boston Corporation investment banker Frank Quattrone, for instance--as well as complaints from the defense bar about the treatment of white-collar defendants, notably the Rigases of Adelphia and the WorldCom defendants, who underwent widely covered perp walks in handcuffs. Comey is still generally well regarded by the white-collar defense bar, which tends to blame the Justice Department for perp walk excesses. "I'm very proud of our work on the corporate crime front," says Comey, insisting that his office treats all defendants the same. "At a time when people's confidence in the criminal justice system was tested, we did a lot of good work quickly."
Comey is considered to be a leader in corporate crime initiatives on the Corporate Fraud Task Force, which was established to advise the president on the prosecution and prevention of corporate crime; and on the Attorney General's Advisory Committee (AGAC), a group of 16 U.S. attorneys who meet in Washington every six weeks under the direction of deputy attorney general Larry Thompson, reporting at the conclusion of their sessions to Attorney General John Ashcroft. The meetings of those two groups also afford Comey a chance to catch up with Fitzgerald, who sits on both committees.
The two, say three members of the committee, can always be counted on to leaven the proceedings. "They'll plant stories about each other, they'll e-mail each other in committee meetings, set people up on questions," says AGAC chairman Paul Warner, U.S. attorney in Utah. "I don't want to convey the impression that they're anything but serious about their work, but they're not so serious about themselves. That's what makes them great guys to be around. They're fun. They enjoy life."
Fitzgerald chairs the terrorism subcommittee of the AGAC, and was particularly involved in such issues as the implementation of the post-September 11 USA PATRIOT Act. Fitzgerald downplays his role in advising the administration after September 11, insisting that his successor in the terrorism unit of the Southern District, Kenneth Karas--who is coprosecuting Zacarias Massaoui in Virginia--knew as much as he did about Al Qaeda. Comey is quick to note, however, that since September 11, Fitzgerald has been regarded as a "think tank in the Midwest," always available to counsel on terror prosecution.
And, of course, he had his own terrorism prosecution in Chicago, in the conspiracy case against Enaam Arnaout, the head of an Islamic charity that, Fitzgerald alleged, was secretly providing material support to Al Qaeda and other violent groups. Fitzgerald, after 18 months in Chicago, is no longer a stranger in town. He spent long hours learning about the office and its cases, establishing a policy on charging defendants that effectively limits plea negotiations in both white-collar and violent cases. Some defense lawyers grouse about inflexibility-- "the trend is to prosecute everybody," says one-- but Fitzgerald says the goal is consistency. He's been hailed by the local press for his willingness to indict members of the local power structure, and is regarded as such a paragon of integrity that his name turned up in calls for an investigation of deaths at a Chicago nightclub with a politically connected owner. But the Arnaout case was his signature prosecution. Not only did Attorney General Ashcroft fly to Chicago to announce the indictment with Fitzgerald, Fitzgerald pledged to try the case himself.
The Arnaout case, scheduled for trial last February, ended for Fitzgerald with something of a whimper right before the trial was to begin. After a pretrial hearing, Chicago federal district court judge Suzanne Conlon ruled that Fitzgerald hadn't yet proved a link between the hearsay evidence he hoped to admit and any conspiracy involving Arnaout. Without the evidence from coconspirators, Fitzgerald was going to have a hard time establishing that Arnaout was financing Al Qaeda and other Islamic militant groups. On the day the trial was to begin, Fitzgerald announced that a deal had been reached, and Arnaout had agreed to plead guilty to one count of racketeering conspiracy, though not a count explicitly mentioning Al Qaeda. The defense portrayed the deal as a concession by the government that Fitzgerald had overpled the case, and an admission by the government that Arnaout wasn't involved with Al Qaeda. Fitzgerald said at the press conference announcing the deal that the government had conceded no such thing.
Fitzgerald says he can't comment on Arnaout, who agreed as part of his deal to cooperate with investigators, because he hasn't been sentenced. Always a friend, Comey--who regularly talks with Fitzgerald about their cases, including this one--rushes to defend Fitzgerald's deal: "Pat feels good about it," he says.
The Arnaout case wasn't enough of a stumble to keep Fitzgerald off speculative lists of who will replace the chief of the criminal division of the Justice Department--lists on which Comey's name also turns up. Both say they're happy where they are, happy to be what they've been for most of their careers. "The hard thing for both of us," says Comey, "is that this is the end of our careers as federal prosecutors. I don't know what I'll do next." He turns to Fitzgerald. "Do you?"
"Nope," says Fitzgerald. "The only downside of whatever comes next is that some morning I'll wake up and not be a federal prosecutor."
Two of A Kind
U.S. Attorneys Patrick Fitzgerald of Chicago and James Comey of Manhattan are both tough-minded career prosecutors. They're also best friends.
The American Lawyer
December 11, 2008