Judge puts off decision in Comey case as Justice Department seeks new indictment against ex-FBI head

A federal judge on Friday put off a decision on whether to dismiss a placeholder criminal case filed against former FBI Director James Comey, giving the Justice Department an opportunity to pursue an indictment over allegations of a decade-old news media leak.

U.S. District Judge Trevor McFadden acknowledged, though, that despite the Justice Department's hopes, an indictment was no sure thing in a nation's capital where grand juries have repeatedly rejected prosecutors' requests for charges in politically delicate cases. And he said that in the meantime, he would be "extremely frustrated if there's some sort of dawn raid" to arrest Comey before he can be indicted, a concern defense attorneys raised.

“That's not going to happen," prosecutor Dustin Farahnak said.

Lawyers for Comey urged McFadden to immediately block the Justice Department from pursuing its third criminal case against the outspoken critic of President Donald Trump and frequent target of the Republican's retribution campaign. They said the Justice Department had failed to secure an indictment within the 10-year statute of limitations and that the charging document they filed instead, known as a “waiverless information” was legally invalid and inoperable

“The criminal information in this case is time-barred and must be dismissed,” said Ephraim McDowell, one of Comey’s attorneys.

A closed-door court fight came into focus this week

The existence of the “information” was revealed in court documents unsealed Monday that show the Justice Department is pursuing a case against Comey over allegations of a previously investigated news media leak from 2016. An information is a document that is typically filed when a defendant has waived his right to a grand jury indictment and intends to plead guilty, but Comey did not waive that right and his lawyers have made clear that they are contesting the charges.

The Justice Department defended the maneuver as an effort to extend the statute of limitations for seeking a grand jury indictment. But Comey’s lawyers say any indictment would fall outside of the legal time limit for bringing such a case and that it was therefore unfair to leave the matter open.

“Letting this hang out there pending is a very unfair and unjust result,” McDowell said, later adding that Comey would basically “be sitting here” in limbo “and yet the statute of limitations has run.”

McFadden, a Trump appointee, said he understood the point but quipped: “And yet a ham sandwich is harder to indict these days.” That remark referenced the oft-quoted colloquialism that indictments are so easy to obtain that even a ham sandwich can be indicted.

Farahnak, the prosecutor, told the judge it was premature to rule now while the grand jury investigation is still in progress. He hinted that evidence being presented to the grand jury would date from after October 2016 and thus fall within the statute of limitations.

“They may indict, they may not indict,” Farahnak said of the grand jury.

McFadden agreed to hold off on an immediate ruling.

The case is the latest one against Comey

The effort to prosecute Comey, who says he is innocent of the allegations, is part of a series of politically charged investigative actions the department has undertaken in the run-up to next week’s midterm elections.

Comey was fired by Trump in May 2017 as he oversaw an investigation into whether Trump's presidential campaign conspired with Russia to tip the 2016 election in his favor over Democrat Hillary Clinton. The two men have been bitterly at odds ever since, with Comey likening Trump to a corrupt mafia don in a book he published and the president accusing him of treason and calling for his imprisonment.

The first criminal case against Comey, filed in federal court in Virginia, accused him of lying to Congress in 2020 but was dismissed by a judge who concluded that the prosecutor had been illegally appointed.

A separate pending indictment charges Comey with threatening Trump through an Instagram photo of seashells in the numerical arrangement of “86 47" — 86 is slang meaning “to throw out,” “to get rid of” or “to refuse service to,” and Trump is the 47th president. The former FBI director has sought to dismiss the case.

"Well, they’re back — again,” Comey said in a video statement Monday after the documents were unsealed. “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 latest allegation concerns an October 2016 New York Times story related to a secret court order that required Yahoo to scan emails for messages potentially linked to a foreign terrorist organization. The story cited two government officials who spoke on the condition of anonymity about the order from a judge on the Foreign Intelligence Surveillance Court that Yahoo was barred from publicly disclosing.

Prosecutors in a newly unsealed filing said investigators found evidence that Comey “sought to correct misinformation which had appeared in the press by way of Reuters the day before” that New York Times story was published, directed his staff to speak to a journalist at the newspaper related to accuracy concerns “and thereby illegally transferred classified information.”

Federal authorities, including prosecutor John Durham, began investigating the disclosure in early 2017. Durham, who later investigated the FBI’s conduct as it scrutinized potential ties between Russia and Trump’s 2016 presidential campaign, wrote a classified memo in December 2018 recommending no criminal charges against anyone in connection with the disclosure, Comey’s attorneys said in a recent court filing.

In 2019, the U.S. attorney’s office for the District of Columbia opened a second investigation of the same matter under the code name “Tropical Vortex.” But that investigation was closed without any charges filed in early 2020.