DOJ Moves to Charge Comey a Third Time Over Decade-Old Leak, With No Grand Jury
Newly unsealed filings show prosecutors used a 'criminal information' to stop a 10-year clock on a 2016 New York Times story. Comey's lawyers say the charge is invalid.
WASHINGTON — The Trump administration is trying to prosecute former FBI Director James Comey for what it calls a decade-old leak of classified information, according to court documents unsealed Monday. Comey's lawyers immediately dismissed the effort as invalid and outside the legal time limit for bringing a case.
The filings expose a closed-door fight that marks a clear escalation in the administration's pursuit of Comey, a longtime critic of President Donald Trump. It would be the third time in little more than a year that the Justice Department has tried to charge him. The effort also comes amid a series of politically charged actions by the department in the run-up to next week's midterm elections.
"Well, they're back — again," Comey said in a video statement Monday. "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 an independent federal judiciary."
The Justice Department said it filed what is known as a "criminal information" to extend the statute of limitations. "Filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals," a department spokesperson said. "This is an ongoing criminal investigation, and we will not comment further." Unlike an indictment, an information can be filed without the approval of a judge or a grand jury's finding of probable cause.
The case centers on an October 2016 New York Times story about a secret order from the Foreign Intelligence Surveillance Court that required Yahoo to scan emails for messages potentially linked to a foreign terrorist organization. The story cited two government officials who spoke on condition of anonymity. Federal authorities, including prosecutor John Durham, began investigating the disclosure in early 2017. Comey's attorneys say Durham wrote a classified memo in December 2018 recommending no charges against anyone. In January 2019 the U.S. Attorney's office for the District of Columbia opened a second investigation under the code name "Tropical Vortex," which was closed without charges in February 2020.
Prosecutors argue in the newly unsealed filing that investigators found evidence Comey "sought to correct misinformation which had appeared in the press by way of Reuters the day before" the Times story ran. They say he directed his staff to speak to a journalist at the newspaper about accuracy concerns "and thereby illegally transferred classified information."
Comey's attorney, Patrick Fitzgerald, said the government has looked at this matter twice before and decided not to charge anyone. "Both times the Government determined that no charges should be brought against anyone. Now, ten years after the article was published, the Government filed an 'Information' against Mr. Comey that was not approved by a judge nor issued by a grand jury," Fitzgerald said. "For the third time in little more than one year, the Department of Justice has attempted to charge Mr. Comey with a federal crime. Mr. Comey steadfastly maintains his innocence."
The defense argues the information was filed under seal on Oct. 6, 2026, about ten years after the story appeared, but that the applicable statute of limitations demands an indictment within ten years of the offense, and an information does not suffice. Comey's lawyers have asked a judge to dismiss it. That request is still pending.
The other two cases have not gone well for prosecutors. The first, filed in federal court in Virginia, accused Comey of lying to Congress in 2020. A judge dismissed it after concluding that the prosecutor who brought the charges was illegally appointed. A separate pending indictment charges him with threatening Trump through an Instagram photo of seashells arranged in the numbers "86 47." Comey has sought to dismiss that case, and some legal experts have greeted it with skepticism.
The campaign has reached Comey's family as well. A judge ruled Monday that the Justice Department unlawfully fired his daughter, Maurene Comey, from her job as a prosecutor in New York.
