DOJ Moves to Charge Comey Again, Using a Rarely Seen Filing to Preserve a Statute of Limitations

Court records unsealed on a Monday in late October show that the Justice Department has moved to charge James Comey, the former FBI director, with two counts of violating the Espionage Act. It is the third time the department has tried to bring criminal charges against him. The counts allege that he transmitted national defense information to a person not entitled to receive it.

Comey has not been indicted by a grand jury, and he has not been charged by criminal complaint. Prosecutors used a document called a criminal information, which needs neither a grand jury's approval nor a magistrate judge's finding of probable cause. A Justice Department spokesperson said it was filed to preserve the statute of limitations before it expires, and called this an ongoing criminal investigation on which the department would not comment further. The department also said in a social media post that filing an information to toll the limitations period is a widely recognized practice, approved by multiple circuit courts of appeals.

The allegations center on an October 2016 newspaper story. On Oct. 5, 2016, The New York Times published an article titled "Yahoo Said to Have Aided U.S. Email Surveillance By Adapting Spam Filter," citing two anonymous government officials. According to the filings, the department says it has evidence that Comey wanted to correct misinformation that Reuters had published the day before, and that he directed staff to talk to the Times reporter about the accuracy of the Reuters piece. The crime carries a 10-year limitations period, which runs out this month.

Comey's attorney, Patrick Fitzgerald, said his client steadfastly maintains his innocence and that the filing charges him with crimes he did not commit. Fitzgerald noted that the matter was examined twice during the first Trump administration, and that investigators decided no one should be charged. The record bears that out. John Durham, then U.S. attorney in Connecticut, looked into it in 2017 and found two sources for the article, one of them James Baker, the FBI's former general counsel. Baker said the FBI's chief of staff told him to provide the information and that he understood it came at Comey's instruction. Durham recommended no prosecutions. A second review by the U.S. Attorney's Office in Washington, code-named Tropic Vortex, closed in February 2020, also without charges.

The method has startled people who practice in this area. Greg Rosen, a former federal prosecutor who helped lead Jan. 6 cases, said he never saw one used this way in years in D.C., let alone in a third attempt by the same department against the same man. Michael Bromwich, a former Justice Department inspector general now in defense practice, said he had never heard of proceeding by information to toll a limitations period. Informations, he noted, normally appear when a defendant waives a grand jury and plans to plead guilty. He called it an end-run around the statute of limitations, "absolutely bizarro world stuff." Courts elsewhere have approved the practice in some cases, but it is less common in Washington.

The filing was made under seal in early October. On Oct. 9, just before the Columbus Day weekend, Comey's lawyers argued that the information was faulty and that the limitations period applies to indictments and cannot be extended this way. They said they believed the government might seek an arrest warrant that day, leaving Comey in jail over the holiday, and that federal officers had been watching his movements. At an emergency hearing, the government agreed to hold off on seeking an indictment for 30 days, his attorneys later wrote. Prosecutors responded that his motion to dismiss was premature, since no indictment had been returned, and cited statutory language allowing the deadline to be met when an indictment is found or an information is instituted. The document was signed by acting Deputy Attorney General Trent McCotter, Principal Associate Deputy Attorney General Aakash Singh, and several special assistant U.S. attorneys from outside the D.C. office.

U.S. District Judge Trevor McFadden, a Trump nominee, unsealed the docket at Comey's request. He wrote that charges against a former FBI director for conduct in office are of significant public interest, and that Comey had offered to self-surrender, so secrecy was not needed to apprehend him. He did not rule on the merits.

Comey said in a video statement, "well, they're back again," calling it an appalling abuse of the Department of Justice and adding that he remains innocent and unafraid. President Trump said he had just heard about it, called Comey a "dirty cop," and said he knew nothing about the case.

The earlier attempts were a September 2025 indictment for lying to Congress, signed by Lindsey Halligan, and an April charge in North Carolina over an Instagram photo of seashells spelling "86 47." Comey's lawyers are seeking dismissal of the North Carolina case as vindictive and selective, and that matter is pending. Attorney General Todd Blanche has denied that politics drives these cases. The filing comes about a month before the midterm elections. What to watch next is whether McFadden addresses the legality of the information, and how it interacts with the pending cases.