DOJ, Comey's lawyers face off in court over latest attempt to charge him

A criminal information is a formal accusation filed by prosecutors. In Comey's case, the Justice Department used one to allege that he violated the Espionage Act by leaking national defense information connected to a 2016 New York Times article. The filing mattered because a 10-year statute of limitations was about to expire.

Usually, prosecutors may seek a grand-jury indictment or file a criminal complaint supported by a probable-cause finding. The information used here required neither step. Prosecutors filed it on October 5, the last day before the 10-year deadline, and argued that doing so paused the limitations clock while they continued investigating.

Comey's lawyers say the maneuver cannot legally preserve the case. They argue that the filing came after another deadline had already passed and that the government cannot prosecute on the information itself. Judge Trevor McFadden did not rule immediately, calling the issues novel. The Justice Department says it is still working toward an indictment.

A statute of limitations sets the maximum time prosecutors generally have to begin a criminal case. The article identifies two relevant deadlines in the Comey dispute. One potential crime had a five-year limit. A separate statute carried a 10-year limit, which prosecutors used for the latest filing.

The alleged disclosure occurred on October 5, 2016. Comey's lawyers argue that the government missed the five-year deadline for one possible offense, then used the 10-year statute only at the last possible moment. The Justice Department filed its criminal information on October 5, before that 10-year period expired.

Prosecutors say filing the information properly paused the 10-year clock. They also say new evidence involves additional overt acts occurring after October 5, 2016. They have not disclosed those details because of grand-jury secrecy. The judge has not decided whether the 10-year filing was timely or whether the case must be dismissed.

Comey's defense wants the judge to dismiss the criminal information before prosecutors obtain an indictment. Its core argument is that the relevant deadlines have expired. If the government missed the five-year limit for one offense and cannot properly rely on the 10-year filing, the defense says there is no timely prosecution left.

The defense also points to the practical burden of an unresolved case. Ephraim McDowell said it was unfair and unjust for the matter to hang over Comey after the statute of limitations had expired. He noted that FBI agents had been stationed outside Comey's home. The lawyers worry prosecutors could fail to secure an indictment, then keep trying.

Judge Trevor McFadden questioned whether a ruling was premature because the Justice Department could return with an indictment two weeks later. He declined to rule immediately because the legal issues were novel. Prosecutors say they are still pursuing a grand-jury indictment, while the judge warned against surprise arrests.

These are three different ways a federal prosecution can begin. A criminal complaint is an accusation that ordinarily requires a magistrate judge to find probable cause. An indictment is a formal charge approved by a grand jury. A criminal information is a prosecutor-filed accusation that does not require grand-jury approval.

The article highlights that distinction because the Justice Department filed an information against Comey. It did not file a criminal complaint or obtain an indictment for the alleged Espionage Act violation. The filing therefore preserved the government's position without the grand jury or magistrate judge making the described preliminary findings.

The mechanism is now central to the dispute. Prosecutors say the information paused the 10-year statute of limitations on October 5, the deadline's final day. Comey's lawyers say it cannot do that and that the case is time-barred. Judge McFadden must decide whether to dismiss now or allow prosecutors to seek an indictment.

This is the Justice Department's third attempt in more than a year to charge Comey. The newest effort concerns an alleged Espionage Act violation tied to information disclosed in connection with a 2016 New York Times article. Prosecutors say the latest filing preserved that case before a 10-year statute of limitations expired.

The first earlier case came in September 2025, when Comey was indicted for lying to Congress. A judge later dismissed those charges because the Trump-appointed prosecutor who led them was unlawfully appointed. The dismissal ended that prosecution as described in the article.

The second earlier case involved a social media post showing seashells arranged to say “86 47.” Comey was charged with threatening President Trump. His lawyers call the charges politically motivated and asked for dismissal based on selective and vindictive prosecution. The North Carolina judge handling that case has not ruled on those motions. The newest case remains focused on deadlines and a possible indictment.

Judge Trevor McFadden is deciding whether the criminal information can remain in place. He must consider the defense claim that the filing was untimely and the government's argument that it paused the statute of limitations. He also controls proceedings before his court, including whether the defense's motion should be heard before an indictment.

Justice Department prosecutors are trying to preserve the case and obtain a grand-jury indictment. Dustin Farahnak said the government filed the information after finding new evidence and realizing it had a “clock problem.” The defense lawyers, led in court by Ephraim McDowell, argue that the deadlines expired and the information must be dismissed.

The grand jury's role is to decide whether sufficient grounds exist for an indictment. It does not decide the defense motion described here. McFadden said prosecutors could return with an indictment soon, but he also did not want surprise arrests. He declined an immediate ruling while the government continued its grand-jury effort.

A statute of limitations sets the period in which prosecutors must begin certain criminal cases. In this dispute, the article identifies a five-year deadline for one possible offense and a 10-year deadline for another. The alleged disclosure occurred on October 5, 2016, making timing the central legal question.

The deadlines matter because prosecutors filed a criminal information on October 5, the final day of the 10-year period. Dustin Farahnak argued that this filing paused the clock. Comey's lawyers say prosecutors had already missed the five-year limit and cannot use the information to extend the case. They ask for dismissal before an indictment.

The broader purpose of such deadlines is to prevent indefinite prosecution and reduce problems caused by aging evidence, although those general purposes are established legal principles rather than details stated in the article. Here, the immediate consequence is uncertainty over whether the government may continue. McFadden has not ruled, and prosecutors are still seeking an indictment.