DOJ Uses Rare Filing to Keep 10-Year Clock Ticking on Comey Case

The Justice Department filed a criminal information against former FBI Director James Comey in early October, a move designed to pause the statute of limitations before it expires this month. This marks the third separate legal effort by the department to bring criminal charges against Comey regarding the disclosure of national defense information.

Court records unsealed on Monday show prosecutors are seeking to charge Comey with two counts of violating the Espionage Act. The government alleges he transmitted classified information to a person not authorized to receive it. Unlike a standard indictment, a criminal information does not require approval from a grand jury or a finding of probable cause by a magistrate judge.

A Justice Department spokesperson stated that the filing was intended to preserve the statute of limitations. The official described the matter as an ongoing criminal investigation and declined further comment. The department added that using a criminal information to toll the statute is a recognized practice approved by multiple circuit courts of appeals.

Comey's attorney, Patrick Fitzgerald, said his client steadfastly maintains his innocence. Fitzgerald argued that the filing purports to charge crimes Comey did not commit. He noted that investigators examined the matter twice during the first Trump administration and determined that no charges should be brought.

The charges stem from a New York Times article published on Oct. 5, 2016, about Yahoo aiding U.S. email surveillance. The department alleges Comey sought to correct misinformation that had previously appeared in Reuters by directing staff to speak with the Times reporter. The 10-year statute of limitations for this offense would have expired in October.

Legal experts called the maneuver highly unusual. Greg Rosen, a former federal prosecutor, said he had never seen a criminal information used this way in Washington, D.C., especially in a third attempt to charge the same individual. Michael Bromwich, a former Justice Department inspector general, described the practice as an end-run around the statute of limitations to keep a case alive that deserved to die nine years ago.

U.S. District Judge Trevor McFadden ordered the docket unsealed at Comey's request. He wrote that criminal charges against a former FBI director are of significant public interest. McFadden noted that Comey is aware of the information and has offered to self-surrender, removing the need for secrecy. The judge did not rule on the merits of the case.

Comey has faced two prior investigations into the 2016 leak. Former U.S. Attorney John Durham investigated the matter in 2017 but did not recommend prosecution. A second investigation by the U.S. Attorney's Office for the District of Columbia closed in February 2020 without charges. Comey currently faces other pending charges, including an indictment for lying to Congress and a North Carolina case involving an Instagram post.