Comey asks judge to throw out third criminal case as time-barred

A federal judge in Washington heard arguments Friday on whether to throw out the newest criminal case against James Comey, the former FBI director, in a hearing that turned on an unusual legal maneuver: prosecutors charged him without ever taking the case to a grand jury.

The case, filed as a two-count criminal information in the U.S. District Court for the District of Columbia, accuses Comey of unlawfully communicating national defense information to a reporter in 2016 and conspiring to do so, in violation of the Espionage Act. It is the third criminal proceeding the Trump administration has brought against Comey since September 2025, and the first to rely on a charging document filed without grand jury review.

U.S. District Judge Trevor McFadden, who sits on the federal bench in Washington, ordered the case unsealed on Oct. 26 at the request of Comey's lawyers and set Friday's hearing on their motion to dismiss. The charging document, a copy of which is available through the federal court's public docket, was filed under seal on Oct. 5 — exactly ten years to the day after the 2016 New York Times article at the center of the allegations.

A charge without an indictment

Prosecutors allege that while serving as FBI director in October 2016, Comey authorized a subordinate to disclose information related to national defense to a Times reporter working on a story about the bureau's use of a secret surveillance order. The government has not obtained a grand jury indictment on the charge. Instead, it used a "criminal information," a type of charging document ordinarily filed only with a defendant's consent, which the Justice Department has described as a "widely recognized practice" meant to preserve the case before the Espionage Act's ten-year limitations period expired on Oct. 5.

Comey's lawyers argue that maneuver does not work. In a motion filed with the court, they wrote that the information "should be dismissed as time barred," contending that the statute requires an indictment — not merely a filing by prosecutors — within ten years of the alleged offense. They note that two separate U.S. attorney's offices investigated the same underlying conduct in earlier years and both declined to bring charges.

"Comey steadfastly maintains his innocence," his legal team said in a statement after the filing was unsealed.

The Justice Department's response, also filed with the court, counters that the motion is premature because no indictment has been returned. "There is no indictment to be dismissed," prosecutors wrote, arguing that the information can lawfully substitute for an indictment in advance of grand jury action and that the ten-year window applies to when charges are filed, not when a grand jury acts.

Third attempt in just over a year

The Washington case is the latest in a string of Justice Department efforts to prosecute Comey, who was fired as FBI director by President Trump in 2017 and has remained a frequent target of the administration since. A grand jury in the Eastern District of Virginia indicted Comey in September 2025 on charges of lying to Congress and obstruction, tied to his 2020 Senate testimony, but a judge dismissed that case in November 2025 after finding that the interim U.S. attorney who secured the indictment, Lindsey Halligan, had been unlawfully appointed to the post. The Justice Department has appealed that ruling.

In April 2026, a separate grand jury in the Eastern District of North Carolina indicted Comey on a charge of threatening the president, after he posted a photograph on Instagram showing seashells arranged to spell "86 47," language prosecutors characterized as a threat against Trump. Comey's lawyers have moved to dismiss that case as well, arguing the post amounted to protected political commentary and that "86" is common restaurant slang for discontinuing an item, not a threat of violence. A North Carolina judge has not yet ruled on those motions.

• The new Washington case is Comey's third criminal proceeding since September 2025.
• It was filed as a criminal information on Oct. 5, 2026 — without a grand jury indictment — and unsealed Oct. 26.
• The case alleges unlawful communication of national defense information and conspiracy, both tied to a 2016 disclosure to a New York Times reporter.
• Comey's first case (lying to Congress) was dismissed in November 2025 over an unlawfully appointed prosecutor; his second (the "86 47" post) remains pending in North Carolina.

What's next

Judge McFadden did not rule from the bench Friday, and it remained unclear when he would decide the dismissal motion. Legal analysts who have tracked the case say the government's approach is legally untested: filing an information without either a defendant's waiver or a grand jury indictment is rarely used specifically because of the limitations questions it raises. If McFadden grants the motion, prosecutors could still attempt to seek a grand jury indictment, though Comey's lawyers argue that path is now foreclosed by the expired limitations period. If he denies it, the case would proceed with the government still required to eventually seek an indictment or secure a waiver from Comey, which his legal team has given no indication it would provide.

The North Carolina case, meanwhile, continues on a separate track, with both sides awaiting a ruling on Comey's selective-and-vindictive-prosecution claims. Comey has said publicly that he expects the Justice Department to keep pursuing him. His legal team has called the pattern of successive prosecutions, following the earlier case's dismissal for a fatal procedural defect, an "appalling abuse" of the department's authority.

No trial date has been set in the Washington case, and none can be set until the dismissal motion is resolved and the question of whether an indictment will follow is settled.