Federal prosecutors charged former FBI Director James Comey with two Espionage Act counts on October 5, without a grand jury. They used a criminal information, filed in Washington ten years to the day after the 2016 disclosure it describes. Comey denies the charges.
His lawyers say the filing came too late. Only a grand jury indictment, they argue, could use the 10-year deadline.
Judge Trevor McFadden of the federal court in Washington unsealed the case on Monday, October 26. It is the Justice Department’s third case against Comey since September 2025. Whether it survives turns less on 2016 than on a deadline question the D.C. Circuit has never answered.
What the three-page filing alleges
The criminal information has two counts. Count One says that on or about October 5, 2016, Comey passed national defense information to someone not entitled to it. Count Two charges a conspiracy to do the same. Each count carries up to 10 years in prison under Section 793 of the Espionage Act.
The filing names no reporter and no publication. It says Comey, “through one and more co-conspirators,” directed “Individual #1” to tell “a reporter for a national news publication.” The government’s later brief points to a New York Times article by Charlie Savage, published on October 5, 2016. It reported that Yahoo had adapted a spam filter to help with US email surveillance.
According to the brief, the article appeared less than four hours after an internal email went to about 30 intelligence officials. Prosecutors say the email held proposed talking points answering a Reuters story from the day before. Their brief says Comey “directed staff to speak to Mr. Savage” about accuracy concerns, “and thereby illegally transferred classified information.” Those are allegations, and no court has tested them.
Three special assistant US attorneys for the District of Columbia signed the information. Above their names sit Acting Deputy Attorney General R. Trent McCotter and Associate Deputy Attorney General Aakash Singh.
Why felony charges normally need a grand jury
The Fifth Amendment says no one “shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” In federal court, Rule 7 of the Federal Rules of Criminal Procedure puts that into practice. Any offense punishable by more than a year in prison “must be prosecuted by an indictment.”
A criminal information is different. A prosecutor writes and signs it, and no grand jury votes on it. Under Rule 7(b), prosecutors can use one for a felony only if the defendant waives indictment “in open court.” Comey has not done so. On the night of October 5, his lawyer Patrick Fitzgerald wrote to prosecutors that Comey had not waived indictment, a defense motion says.
Prosecutors agree. Their brief concedes that Comey “cannot be convicted without either an indictment or his waiver of indictment.” The information’s job is to stop the clock. The Justice Department told NBC News that “filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court.”
Two deadlines, and one missing word
The default limit for federal crimes is five years. Under Section 3282(a) of the criminal code, either an indictment or an information must come within that time. For a 2016 disclosure, five years ran out in October 2021.
Espionage cases get longer. Section 19 of the Internal Security Act of 1950 sets a ten-year limit for Section 793 crimes. Its text, printed as a note to Section 792, covers only “an indictment.” It says nothing about an information. That gap is the whole case.
Comey’s lawyers argue that Congress gave prosecutors ten years only if a grand jury indicts. An information, in their view, still falls under the old five-year limit. And the ten years for an indictment expired on October 5, 2026, with no indictment. Their full motion to dismiss, filed October 16, calls the information “a nullity.”
Why prosecutors say the filing counts
Prosecutors answer that “the case comes down to a syllogism.” Section 3282 lets either document satisfy the deadline, they say, and Section 19 only sets how long that deadline is. They say the word “information” is missing because Congress copied a 1939 law on capital crimes. Prosecutors could charge those only by indictment.
Both sides cite rulings from the 4th, 7th and 11th Circuits. Those courts held that an information filed within five years stops the clock, and a later indictment can then relate back to it.
The D.C. Circuit has never decided the question. The defense notes that all three cases involved informations filed inside the five-year window.
That is what makes this filing unusual. The government needs McFadden to accept two untested steps at once.
First, that an information stops the clock in Washington’s federal courts at all. Second, that it can stop a ten-year clock whose text mentions only indictments. If either step fails, the charges are time-barred.
There is no fallback. Section 3288 gives prosecutors six more months to re-indict after a dismissal. That grace period doesn’t cover a missed original deadline.
Prosecutors also call the motion premature. There is no indictment to dismiss, they say, and Comey has not yet appeared in court.
Three weeks under seal
The day it filed the information, the government asked the court to seal it. It said unindicted co-conspirators appeared in the filing and that public notice could “endanger cooperating witnesses.” McFadden agreed, but let prosecutors send the charges to Fitzgerald. They emailed them at 9:24 p.m. on October 5.
On Friday, October 9, Comey’s lawyers filed an emergency motion. They said they feared an arrest that would leave him “in jail over a holiday weekend.” Prosecutors had written that Comey was not at risk of arrest “at this time.” At a hearing that day, the government agreed to wait 30 days before seeking an indictment, CBS News reported. The government’s brief says the defense asked for that pause.
By October 23 the government no longer opposed unsealing. McFadden noted that sealing usually helps catch a defendant, but Comey knew of the charges and had offered to surrender. The judge said he would rule on the rest of the dismissal motion “in due course.”
In a video posted on Substack, Comey called the case an “appalling abuse” of the Justice Department. “I’m still innocent,” he said, the BBC reported.
Fitzgerald said two earlier teams of prosecutors had examined the same disclosure. “Both times the Government determined that no charges should be brought against anyone,” he said. A defense filing says teams led by former special counsel John Durham were among those that declined to prosecute.
Glenn Kirschner, a former federal prosecutor, told the BBC that the case may have passed the 10-year limit. He gave the motion to dismiss “a very good chance” of success. Former prosecutors and defense lawyers told CBS News they had never seen a felony case handled this way.
Two earlier Comey cases, neither finished
The first case came in September 2025, when a grand jury in the Eastern District of Virginia indicted Comey over his 2020 Senate testimony, on false-statement and obstruction charges. Judge Cameron McGowan Currie dismissed it in November 2025. She ruled that Lindsey Halligan, the prosecutor who brought it, held her post unlawfully. The Justice Department has appealed, and the 4th Circuit has not ruled.
The second came in April 2026, in the Eastern District of North Carolina. Prosecutors say a May 2025 Instagram photo of seashells spelling “86 47” was a threat against President Trump, which Comey denies.
Judge Louise Flanagan has moved his arraignment to January 2027. She has set no trial date while she weighs his motions, including one alleging vindictive prosecution.
The new case lands a week before the November 3 midterms, which our midterms guide covers. It joins other Justice Department inquiries in the news this month, such as the reported investigation of Corey Lewandowski.
The government’s brief refers to a grand jury investigation that has not concluded. The 30-day pause reported by CBS runs to about November 8. After that, prosecutors may seek an indictment, which the defense says would come too late. McFadden still has to rule on whether the October 5 filing bought them any time at all.
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