The U.S. Justice Department has initiated a new legal effort to charge former FBI director James Comey, marking the third attempt by federal prosecutors to bring criminal charges against the high-profile former official. Court records indicate that prosecutors are seeking to charge Comey with two counts of violating the Espionage Act, specifically alleging that he transmitted national defense information to an individual not entitled to receive it.
Unlike a standard indictment, the government utilized a criminal information filing, a maneuver that does not require approval from a grand jury or a finding of probable cause by a magistrate judge.
A spokesperson for the Justice Department stated that the filing was intended to preserve the statute of limitations before it expires, adding that the matter remains an ongoing criminal investigation and declining further comment. In a statement posted to social media, the department defended the action, asserting that filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court that has been approved by multiple Circuit Courts of Appeals.
However, the move has drawn sharp criticism from legal experts. Michael Bromwich, a former Justice Department inspector general now working as a defense attorney, described the maneuver as highly unusual.
Bromwich stated that he has never encountered a situation where a criminal information was used to pause the statute of limitations, noting that such documents are typically filed only when a defendant intends to waive their right to a grand jury and plead guilty. He characterized the action as an attempt to perform an end-run around the statute of limitations to keep a case alive that he argued deserved to die nine years ago, calling the situation "bizarro world stuff."
The allegations stem from an October 5, 2016, article in The New York Times titled, "Yahoo Said to Have Aided U.S. Email Surveillance By Adapting Spam Filter." The Justice Department alleges that it has uncovered evidence that Comey sought to correct misinformation that had appeared in the press via Reuters the day before and that he directed staff to speak with the Times reporter regarding the accuracy of the Reuters piece.
Comey’s attorney, Patrick Fitzgerald, stated that his client "steadfastly maintains his innocence" and argued that the information "purports to charge Mr. Comey with crimes that he did not commit." Fitzgerald further noted that investigators had already looked into the matter twice during the first Trump administration and determined that no charges should be brought against anyone.
In a video statement, Comey addressed the development, remarking, "Well, they're back again." This was a reference to two prior attempts to charge him, including a dismissed indictment accusing him of lying to Congress and a still-pending indictment alleging he threatened President Trump via a social media post of seashells arranged to spell "86 47." Comey stated, "It would almost be funny if it weren't such an appalling abuse of the Department of Justice, one that we cannot become numb to.
Nothing's changed with me. I'm still innocent, I'm still not afraid of these people and I still believe in the independent federal judiciary."
The charging documents were filed under seal in early October and were unsealed on Monday by U.S. District Judge Trevor McFadden at Comey’s request. Judge McFadden ruled that criminal charges against a former FBI director for conduct while in office are of significant public interest.
He also noted that because Comey was aware of the information and had offered to self-surrender, there was no need to keep the case secret to facilitate his apprehension. The judge did not rule on the merits of the case.
Throughout October, Comey’s legal team and federal prosecutors engaged in a behind-the-scenes conflict over the dismissal of the effort. In an October 9 filing, Comey’s lawyers argued that the government filed a "faulty information under seal" to toll the 10-year statute of limitations, which they contend applies to indictments and cannot be extended by a criminal information.
The defense also expressed concern that the government planned to use the information to seek an arrest warrant, potentially resulting in an after-hours arrest that would keep Comey in jail over a holiday weekend.
They further alleged that federal law enforcement officers had surveilled Comey’s whereabouts while he traveled to visit family and around his neighborhood. During an emergency court hearing, the government agreed to hold off on seeking an indictment for 30 days. The Justice Department argued that Comey’s motion to dismiss was premature because no indictment had been returned, asserting that the law allows prosecutors to meet the deadline if the "indictment is found or the information is instituted."
The criminal information was signed by senior officials, including acting Deputy Attorney General Trent McCotter and Principal Associate Deputy Attorney General Aakash Singh, alongside several special assistant U.S. attorneys from outside the Washington, D.C. office.
