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Yesterday morning, Maurene Comey won her wrongful termination suit against the Justice Department, which fired her after a week of shitposts by Laura Loomer, despite a decade of exemplary service.
But the president’s animus — and his underlings’ willingness to weaponize the judicial process — knows no bounds. And so, even as Comey v. US was drawing to a close in New York, US v. Comey was coming into view in DC.
For the third time in 13 months, the Trump DOJ has lodged criminal charges against former FBI Director James Comey, Maurene Comey’s father.
First the DOJ charged him in Virginia with making false statements to Congress. When those charges fell apart because Trump’s Florida insurance lawyer Lindsey Halligan was never legally appointed as US attorney, they charged him in North Carolina with threatening to assassinate the president via Instagram post.
And now, with the “86 47” indictment teetering on the brink, they’re grasping for a classified leak charge that is even more defective than the first two forays.
As Comey said on Substack, “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.”
Old news
The case involves an article by Charlie Savage and Nicole Perlroth entitled “Yahoo Said to Have Aided US Email Surveillance by Adapting Spam Filter.” It was published on October 5, 2016, in the New York Times, which, the government notes breathlessly is “a global paper circulating to a global audience.”
According to the DOJ, Comey "sought to correct misinformation which had appeared in the press by way of Reuters the day before" and "directed staff to speak to Mr. Savage about specific accuracy concerns related to the Reuters article, and thereby illegally transferred classified information."
The government calls this a conspiracy to violate 18 U.S.C. § 793, better known as the Espionage Act, which is punishable by 10 years in prison.
The details of this episode have been public for years. FBI General Counsel James Baker spoke to Savage on instruction from Comey's chief of staff, James Rybicki, whom Baker understood to be conveying an order from his boss. It’s been thoroughly investigated and rejected by prosecutors, as current FBI Director Kash Patel confirmed last year when he declassified the underlying materials to prove Comey’s supposed perfidy.
In 2017, Acting Deputy Attorney General Dana Boente tasked John Durham, then the US attorney in Connecticut, with investigating the “leak.” Durham was later appointed special counsel, where he spent years fruitlessly trying to build a conspiracy case based on the Russia investigation. But in 2018, his team recommended no prosecution of Comey, Baker, or Rybicki.
Then the US Attorney’s Office in DC took a swing at it, assigning an investigation with the codename “Tropic Vortex.” They didn’t find any crimes either, but lack of crime has never stopped Attorney General Todd Blanche from going after Trump’s enemies. And so he shouted “F--k it, we ball!” (probably) and charged Comey again (kind of).
It’s like an indictment, but not
On October 5, the DOJ filed a criminal information in the US District Court for the District of Columbia. A criminal information is not an indictment — and this distinction is critical to understanding this debacle.
An information is a charging document, written and signed by the prosecutor, without going to a grand jury or a judge. For misdemeanors, which carry a sentence of less than a year in jail, that's enough to start the case.
But the Fifth Amendment says that no one may be "held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." And so, to charge a defendant with a felony, prosecutors have to convince a grand jury to vote for indictment by demonstrating probable cause to believe that a crime occurred.
The sole exception is when the defendant "in open court and after being advised of the nature of the charge and of the defendant's rights — waives prosecution by indictment," in which case he "may be prosecuted by information." So, in the case of a plea deal, the parties can just walk into court with an information and not bother with a grand jury.
Obviously, that’s not what happened here. And, when pressed, prosecutors pointedly refused to confirm that they weren’t about to get a grand jury indictment and show up to arrest him. So Comey’s lawyers filed an emergency motion for a hearing before Judge Trevor McFadden hoping to head off a public arrest.
In court on October 9, the government admitted that it had planned to do just that, taking Comey into custody after close of business to ensure that he’d remain locked up through the holiday weekend. Deprived of the the handcuffed perp walk they so clearly desired, they eventually agreed to hold off for 30 days while the court considers Comey’s motion to dismiss the case.
Timing is everything
The problem here — aside from the fact that multiple teams of prosecutors have now passed on these charges — is the statute of limitations.
The default statute of limitations for most federal crimes is set out in 18 U.S.C. § 3282, which says:
Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.
Note that § 3282 allows the government to satisfy the statute of limitations by securing an indictment or filing a criminal information within five years.
But in the case of the Espionage Act, Congress has “otherwise expressly provided by law.” The International Security Act of 1950 extends the statute of limitations to 10 years:
An indictment for any violation of title 18, United States Code, section 792, 793, or 794, other than a violation constituting a capital offense, may be found at any time within 10 years next after such violation shall have been committed.
The DOJ’s position is that, having filed the criminal information on October 5, 2026, 10 years to the day after Comey authorized Baker to speak to the Times, they made it in just under the wire. But unlike § 3282, which refers to both and indictment and an information, the ISA refers to an indictment only.
And so, Comey moved to dismiss the information because it’s been more than 10 years since this “leak” of “classified” secrets, and he hasn’t been indicted.
Turning the tables
The government’s response is to effectively jam the two laws together and hope Judge McFadden won’t care.
“The case comes down to a syllogism,” they insist. “Section 3282 makes a prosecution timely if ‘the indictment is found or the information is instituted’ within the period that governs the offense. Section 19 does not displace that rule; it supplies only the period. For a violation of Section 793, that period is 10 years. Congress did not need the word ‘information’; it had no reason to write it.”
That logic may sound convincing on social media, but it turns every principle of statutory construction on its head. Courts will presume that Congress meant what it said, and that subtle differences in language between parallel laws are deliberate. Indeed, every case the government relies on involves using an information to toll the five-year statute of limitations under § 3282. No court has ever allowed prosecutors to stop the clock on a 10-year SOL with just a criminal information.
The best argument the government can come up with is a supposedly fatal “concession” by Comey that a defendant could plead guilty in year seven and waive the indictment.
“So how does that case go forward? The motion does not say,” the prosecutors snark. “The silence is deafening, because there is only one answer: Section 19’s 10-year limitations period reaches informations.”
Which would be a big old slam dunk if Comey hadn’t specifically noted that defendants are free to waive the statute of limitations along with “many of the most fundamental protections afforded by the Constitution.”
The question isn’t whether Comey could plead guilty by information today, or next year, or 50 years from now. The question is whether the government can use an information to stop the clock. And the answer is very clearly “no.”
Judge McFadden says he’ll rule on the motion to dismiss “in due course.” And if not for Comey calling the government’s bluff, he might have done so without the public ever finding out. (Set aside for the moment that everyone in DC is leaking all the time.)
The government initially filed the information under seal, putatively to protect “the ongoing criminal investigation” … of a 10-year-old incident that Kash Patel won’t shut up about. In his motion to dismiss, Comey asked the judge to unseal it because “sunlight is the best disinfectant.”
So now, the Trump administration doesn’t get its perp walk. Instead, every legal pundit in the country (including yours truly) is going to spend the week laughing and pointing at this garbage case. And, in the likely event that Judge McFadden dismisses it out of hand, the DOJ will have gotten its ass kicked by James Comey in public again.
The fact that it coincided with his daughter’s victory in New York is just icing on the cake.
That’s it for today
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Thanks for reading.
There just is no bottom in the Trump "administration."
Surely their must be some way of holiding accountable people who abuse the power of prosecution so badly?