Judge delays ruling as prosecutors seek grand jury vote on 10-year-old leak case

Federal prosecutors are attempting to charge James Comey for a 2016 news leak, a move that has triggered legal disputes over the statute of limitations and the validity of the charging documents. On Friday, U.S. District Judge Trevor McFadden delayed a ruling on whether to dismiss a placeholder criminal case, granting the Justice Department time to secure a grand jury indictment.

The case involves allegations that Comey disclosed classified information regarding a 2016 New York Times story about a secret court order. That order required Yahoo to scan emails for messages linked to a foreign terrorist organization. Prosecutors argue that Comey directed staff to contact a journalist to correct misinformation, thereby transferring classified details.

The timeline of the investigation spans nearly a decade. In early 2017, federal authorities, including prosecutor John Durham, began probing the disclosure. Durham wrote a classified memo in 2018 recommending against criminal charges. A second investigation, codenamed Tropical Vortex, opened in 2019 but closed without charges in early 2020. The current legal battle emerged after court documents unsealed on Monday revealed the Justice Department had filed a waiverless criminal information just as the 10-year statute of limitations was set to expire.

Defense attorneys argue the government failed to secure an indictment within the legal window. They contend the filing of an information, which is typically used when a defendant waives the right to a grand jury, is legally invalid because Comey did not waive that right. Ephraim McDowell, one of Comey's lawyers, stated that the criminal information is time-barred and must be dismissed. He described leaving the matter open as an unfair and unjust result that leaves Comey in a state of limbo.

Prosecutor Dustin Farahnak countered that it is premature to rule while the grand jury investigation is active. He indicated that evidence being presented to the grand jury involves activities extending into 2017, which would place a potential indictment within the statute of limitations. Farahnak also addressed defense concerns about a potential pre-indictment arrest, stating that such a dawn raid is not going to happen.

Judge McFadden acknowledged the difficulty of obtaining indictments in Washington, quipping that ham sandwiches are harder to indict these days. He expressed concern that he would be extremely frustrated if authorities arrested Comey before an indictment was secured. The judge agreed to hold off on an immediate decision to allow the grand jury process to unfold.

This is the third criminal case filed against Comey, a former FBI director fired by President Donald Trump in May 2017. The first case, alleging he lied to Congress in 2020, was dismissed due to an illegal appointment of the prosecutor. A separate pending indictment charges Comey with threatening Trump via an Instagram photo of seashells arranged to read 86 47, referencing the president's number. Comey has sought to dismiss that case as well.

The prosecution comes shortly before next week's midterm elections. Comey, who maintains his innocence, released a video statement on Monday. He said, Well, they're back again. It would almost be funny if it weren't such an appalling abuse of the Department of Justice. He added that he is still innocent, not afraid, and believes in the independent federal judiciary.

The next step in the case is the grand jury vote. The Justice Department is currently presenting evidence to the grand jury in Washington. If the jury returns an indictment, the placeholder information will be superseded. If the jury declines to indict, the case may be dismissed, resolving the dispute over the statute of limitations.