DOJ takes steps to charge James Comey again

A criminal information is a formal charging document filed by prosecutors. It can begin a federal criminal case without grand-jury approval. That matters here because Comey has not been indicted or charged by criminal complaint, yet prosecutors filed an information to preserve their case before the deadline expired.

An indictment normally follows a grand jury’s approval of felony charges. The grand jury considers the government’s evidence and decides whether there is probable cause to charge. By contrast, the article says a criminal information requires neither grand-jury approval nor a magistrate judge’s finding of probable cause.

The Justice Department says using an information to toll the deadline is recognized in federal courts. Comey’s lawyers and former prosecutors call this use highly unusual. Normally, the article says, informations are filed when a defendant waives a grand jury and plans to plead guilty. The legal dispute remains unresolved.

The Justice Department alleges that Comey gave national defense information to an unnamed person for disclosure in a newspaper in October 2016. Prosecutors say he sought to correct misinformation reported by Reuters and directed staff to discuss the article’s accuracy with a New York Times reporter.

The proposed charges are two counts under the Espionage Act. The charging theory is that national defense information was transmitted to someone not entitled to receive it. The article identifies the Times story and its two anonymous government sources, but it does not explain precisely how prosecutors divide the alleged conduct into two counts.

Comey’s attorney says he is innocent and that earlier investigations found no basis for charges. The current filing is not an indictment or criminal complaint. It was filed under seal, then unsealed at Comey’s request, while prosecutors and his lawyers argued over whether it should stand.

The latest filing is the Justice Department’s third effort to bring criminal charges against Comey. The article describes two earlier attempts: a dismissed indictment accusing him of lying to Congress and a still-pending indictment tied to a social-media photo of seashells arranged to say “86 47.”

For the newest allegations, Comey’s lawyers say the applicable statute of limitations is 10 years. They say that period would expire in October of this year. Prosecutors therefore filed a criminal information under seal in early October, according to the court records described in the article.

The filing itself does not mean Comey has been convicted or even formally indicted. The Justice Department says the filing preserves the government’s ability to continue the investigation and pursue charges. Comey’s lawyers argue the information cannot legally extend the deadline, so the court must decide whether the case remains alive.

Tolling means stopping or preserving a legal deadline so it does not run out while a case remains under review. Here, the Justice Department filed a criminal information before the 10-year statute of limitations expired. Its stated purpose was to keep the alleged offense chargeable while the investigation continued.

The filing does not itself establish guilt. It also does not amount to a grand-jury indictment. But if the court accepts the government’s approach, prosecutors may retain the ability to seek further action, including an indictment or another formal charging step. Comey’s lawyers warned that the government might seek an arrest warrant.

The practical consequence is that the case would not automatically die when the deadline passes. The legal question is whether this particular document can toll the period. Prosecutors cite federal appellate decisions approving the practice, while defense lawyers and former prosecutors describe the filing as highly unusual.

Comey’s lawyers challenge the filing’s legal effect. They argue that the statute of limitations applies to indictments and cannot be extended merely because prosecutors filed a criminal information. In their view, the government’s document was faulty and did not preserve a case whose deadline was expiring.

The Justice Department takes the opposite position. It says filing an information to toll the statute of limitations is a widely recognized federal-court practice. The department also says multiple Circuit Courts of Appeals have approved it. That argument treats the filing as enough to preserve the government’s claim before the deadline.

The dispute matters because no grand jury has indicted Comey on this allegation. Former prosecutors and defense lawyers told CBS News they had not seen this method used in a felony case. A judge will have to decide whether the filing legally keeps the prosecution alive.

A grand jury normally reviews prosecutors’ evidence in a federal felony case and decides whether to return an indictment. Its approval authorizes the government to bring the felony charge formally. This provides a charging step separate from the prosecutors who developed the case.

The article describes a criminal information as different because it does not require grand-jury approval. It also does not require a magistrate judge to find probable cause that a crime was committed. Prosecutors can therefore place the charging document before the court without first obtaining either of those approvals.

That bypass is central to the controversy over Comey. He has not been indicted by a grand jury or charged by criminal complaint. His lawyers say the government is using the information to preserve a case without following the normal route. The Justice Department says the procedure is legally recognized, but former prosecutors call its use here unusual.

The article uses “national defense information” as the material Comey allegedly transmitted, but it does not define the term. In general legal usage, it refers to closely held information relating to national defense that the government seeks to protect. It is not necessarily identical to every document marked classified.

The proposed Espionage Act counts focus on transmitting that information to a person not entitled to receive it. A journalist may be an unauthorized recipient if prosecutors prove the information was protected and the transmission met the law’s requirements. Publication by a newspaper does not automatically decide whether the original transfer was lawful.

The article identifies an October 5, 2016, New York Times story and two unnamed government sources. Prosecutors allege Comey directed staff to speak with the reporter. The allegations remain unproven. Comey’s attorney says he committed no crime, and the article does not report a judicial ruling on whether the information qualifies as protected defense information.