Comey Asks Judge to Toss Third Criminal Case Over Decade-Old Leak
James Comey's lawyers say a leak case filed without a grand jury came too late. The Justice Department says the filing paused the legal deadline.
Lawyers for James Comey, the former FBI director and longtime foe of President Donald Trump, were set to ask a federal judge in Washington on Friday to throw out the Justice Department’s third criminal case against him, arguing that prosecutors missed a legal deadline and used the wrong kind of charging document.
The hearing before U.S. District Judge Trevor McFadden, a Trump nominee, centers on an unusual step: prosecutors bypassed a grand jury and filed a “criminal information,” a charging document submitted directly by the government, on Oct. 5. That was exactly 10 years after the alleged disclosure at the heart of the case. No ruling had been reported at the time of publication.
What Comey is accused of
Comey is charged with transmitting national defense information and with conspiring to do so, NBC News reported. The case was filed under seal, and McFadden made it public on Monday, writing that the underlying facts “have been subject to considerable press coverage.”
The allegations involve an Oct. 5, 2016, New York Times story by reporter Charlie Savage. According to the Associated Press, the story discussed a secret order from the Foreign Intelligence Surveillance Court, which handles classified government surveillance requests, requiring Yahoo to scan emails for messages potentially linked to a foreign terrorist organization. The story cited two anonymous officials, and Yahoo was barred from publicly disclosing the order.
Dustin Farahnak, a special assistant U.S. attorney, alleged that Comey sought to correct a Reuters article published the day before, directed staff to speak with Savage and “illegally transferred classified information,” NBC News reported.
Comey says he is innocent. In a video statement after the case was unsealed, he said, “Well, they’re back — again,” and called the prosecution “an appalling abuse of the Department of Justice,” according to the AP. Patrick Fitzgerald, his attorney, told NBC News that Comey “will fight these charges vigorously and in the open.”
The fight over the deadline
The dispute turns on a 10-year statute of limitations, the legal time limit for bringing charges. Comey’s lawyers filed a motion to dismiss about 10 days before the case was unsealed. They argue that both counts rest solely on the 2016 disclosure and that the case is “time barred” because prosecutors needed a grand jury indictment within the 10 years, not a criminal information.
The Justice Department disagrees. A spokesperson told NBC News that the filing was meant to “toll,” or pause, the limitations period, calling this “a widely recognized practice in federal court” that has been approved by multiple federal appeals courts. The AP similarly described the department’s position as an effort to extend the time available to seek an indictment.
Even if the case survives, it could not go to trial as it stands. NBC News reported that prosecutors would have to obtain an indictment, if the court allows it, before Comey could be arrested, arraigned, enter a plea or be tried, unless he took the unusual step of waiving indictment.
Some legal observers are skeptical of the approach. Sarah Krissoff, a former federal prosecutor, told NBC News that “the case is going to go nowhere.”
A disclosure already investigated twice
Comey’s attorneys have emphasized that the same disclosure has been examined before. According to the AP, federal authorities including prosecutor John Durham began looking into it in early 2017. Comey’s lawyers said in a recent court filing that Durham wrote a classified memo in December 2018 recommending no criminal charges.
In 2019, the U.S. attorney’s office in Washington opened a second investigation under the code name “Tropical Vortex,” the AP reported. It closed in early 2020 without charges.
Why it matters and what comes next
The new case is the third the Trump administration has brought against Comey in 13 months, NBC News reported. Trump fired Comey in May 2017, while Comey was overseeing the investigation into whether Trump’s campaign conspired with Russia to influence the 2016 election. Trump has since accused Comey of treason and called for him to be imprisoned, while Comey has compared Trump to a corrupt mafia don in a book, the AP noted.
The two earlier cases have followed separate paths:
- Virginia: A September 2025 indictment accused Comey of lying to Congress in 2020. A judge later dismissed it after finding that the attorney who brought the case, Lindsey Halligan, was unlawfully serving as a federal prosecutor.
- North Carolina: A pending indictment charges Comey with threatening Trump through an Instagram photo of seashells arranged to spell “8647.” Comey denies wrongdoing and has asked for dismissal, with his team saying the image was not a threat and noting that “86” is restaurant slang for an unavailable dish. NBC News reported that the trial has been pushed to 2027.
The AP described the latest prosecution as part of a series of politically charged actions by the Justice Department ahead of next week’s midterm elections. NBC News noted that a federal grand jury in Washington recently declined to indict Cassidy Hutchinson, a former Trump aide, and that a magistrate judge has held hearings on charges against two former FBI officials.
Neither outlet reported a timeline for a decision from McFadden. If he sides with Comey, the Justice Department’s newest case would end before any grand jury has been asked to consider it. If he sides with the government, prosecutors would still need to seek an indictment for the case to move forward.
