The Justice Department filed criminal allegations against former FBI Director James Comey without first obtaining a federal grand jury indictment, opening a third federal case against a longtime target of President Donald Trump. Comey’s lawyers say the move makes the case legally invalid. Prosecutors say they filed to preserve the allegations before the statute of limitations expired while an investigation continues.
Comey denied wrongdoing in an Instagram post Monday, calling the action an “appalling abuse of the Department of Justice.” “Nothing's changed with me. I'm still innocent. I'm not afraid of these people. And I still believe in the independent federal judiciary,” he said. He said his family and legal team would “stand up in court and fight the latest and whatever comes after this.”
A case filed outside the grand jury
The allegations appear in a two-count criminal information filed in U.S. District Court for the District of Columbia. Prosecutors allege that on or about Oct. 5, 2016, Comey knowingly and willfully communicated information related to the national defense to an unauthorized person. A second count alleges he conspired with others to disclose the information unlawfully.
The filing is not an indictment. Comey has not been indicted in this case, and his lawyers have challenged prosecutors’ use of a criminal information without first obtaining a federal grand jury indictment. They have sought to dismiss the case, arguing that bypassing the grand jury makes it legally invalid. The allegations concern an alleged communication ten years earlier, according to the date given in the case materials.
The case had played out under seal since Oct. 5. The allegations were unsealed Monday in federal court in Washington, after Comey’s attorneys asked to unseal the proceedings as well as dismiss the case. The public record now includes the allegations and the procedural fight, while the investigation remains ongoing.
The department defends its procedure
A Justice Department spokesperson said: “The Department filed a waiverless criminal information to toll the statute of limitations as it relates to allegations concerning former FBI Director Comey.” The spokesperson described the filing as “a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals,” then said: “This is an ongoing criminal investigation, and we will not comment further.”
That is the department’s stated rationale: preserve the allegations while investigators continue, using a filing Comey’s lawyers are challenging. Whether prosecutors will seek a grand jury indictment remains unclear. The department has made its procedural case; the judge has not yet ruled on the motion to dismiss.
U.S. District Judge Trevor McFadden held an emergency, closed-door hearing on Oct. 9 after Comey’s attorneys filed their motions. McFadden, appointed to the federal bench by President Donald Trump in 2017, granted the request to unseal the case but has not ruled on dismissal. The proceedings moved from secrecy to public view, but the central legal question remains unresolved.
A third case, with earlier cases still in view
This is the third federal case against Comey, who has been a longtime target of Trump since Comey initiated the FBI investigation into Russian interference in the 2016 election. A previous case accusing Comey of lying to Congress was dismissed. Another case, stemming from his “86 47” seashell social media post, remains pending.
The account of this case describes prosecutors, the Justice Department, defense lawyers and a federal judge; it reports no grassroots organizing, mutual aid or community response. It also identifies no legislative or electoral remedy. For now, the contest runs through the same federal apparatus that filed the allegations and the court that will decide whether this case can proceed in its current form.
- james comey
- justice department
- criminal charges
- national defense information
- washington, d.c.
- criminal investigation
- trevor mcfadden