The Justice Department filed its latest case against James Comey on Oct. 5, 2026 — exactly ten years after the conduct it charges. That is not a coincidence. It is the deadline. Two counts under the Espionage Act’s national-defense-information statute, 18 U.S.C. § 793, carry a ten-year statute of limitations rather than the five-year default that applies to most federal crimes. The alleged offense: directing FBI staff in October 2016 to leak a classified detail to a New York Times reporter. The clock ran out on Oct. 5, 2026. The document the department filed that day arrived with a defect its own prior statements had flagged as disqualifying.
An information, not an indictment
Federal prosecutors have two ways to bring a felony case: a grand jury indictment, after jurors review evidence and vote to charge, or a prosecutor-drafted “information,” filed without a grand jury, which normally requires the defendant’s consent. The ordinary five-year statute of limitations, 18 U.S.C. § 3282, lets either document stop the clock. Section 793 is not ordinary. Its ten-year limitations period comes from Section 19 of the Internal Security Act of 1950, and that provision’s text says only an indictment — not an information — can be “found” within the ten years. Jack Goldsmith, the Harvard Law professor and former Justice Department official, laid out the distinction in a legal analysis published on his Substack: the department’s own justification, that filing an information to toll a deadline is routine and court-approved, is true only of the five-year default rule, not of Section 19’s indictment-only language. Comey did not consent to being charged by information. A grand jury never saw this case.
| From | To | How |
|---|---|---|
| Oct. 5, 2016 (alleged leak to NYT reporter) | 5-year default clock (18 U.S.C. §3282, expired 2021, unused) | |
| Oct. 5, 2016 (alleged leak to NYT reporter) | 10-year Espionage Act clock (Internal Security Act §19, requires an indictment) | |
| 10-year Espionage Act clock (Internal Security Act §19, requires an indictment) | DOJ files an information (Oct. 5, 2026, under seal, no grand jury) | deadline reached |
| DOJ files an information (Oct. 5, 2026, under seal, no grand jury) | Comey moves to dismiss (Oct. 9: an information isn't an indictment) | |
| Comey moves to dismiss (Oct. 9: an information isn't an indictment) | McFadden unseals the case (Oct. 26, 2026) | |
| McFadden unseals the case (Oct. 26, 2026) | Motion to dismiss pending |
Based on Court filings reported by NBC News, CNN and CBS News
Elie Honig, a CNN legal analyst and former federal prosecutor, called the move “a bizarre, and likely improper, use of a criminal ‘information’ to end-run the statute of limitations,” noting an information “must be agreed to by a defendant — and Comey did not consent here.” Greg Rosen, a former supervisor in the U.S. Attorney’s Office for the District of Columbia, was blunter, telling NBC News the filing was “a placeholder charge the defendant can’t be tried on, on the last possible day, under seal, in the third case against the same man” — “not routine or ‘widely recognized.’ It is exactly what it appears to be: vindictive.” The department’s own position, stated by a spokesperson, is that “filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals.” Whether that practice extends to Section 19’s indictment-specific language is the question now before U.S. District Judge Trevor McFadden, who has not ruled.
The same leak, investigated twice before, charged neither time
The underlying conduct is not new to investigators. The allegation concerns an Oct. 5, 2016 New York Times story by Charlie Savage reporting that Yahoo had complied with a secret Foreign Intelligence Surveillance Court order to scan user email for messages tied to a foreign terrorist organization. Prosecutor Dustin Farahnak’s filing, unsealed Monday, alleges Comey had staff “correct misinformation which had appeared in the press by way of Reuters the day before” and in doing so directed disclosure of classified material to Savage. Federal authorities opened an investigation within months of Comey’s May 2017 firing. Special Counsel John Durham, brought in to examine the FBI’s Russia inquiry, wrote a classified memo in December 2018 recommending no charges against anyone over the disclosure, according to a filing by Comey’s attorneys. The U.S. Attorney’s office for D.C. opened a second investigation, code-named “Tropical Vortex,” in January 2019; it closed without charges in February 2020. Patrick Fitzgerald, Comey’s attorney, put the arithmetic plainly: “For the third time in a little more than one year, the Department of Justice has attempted to charge Mr. Comey with a federal crime.”
Three cases, two courts, zero convictions
This is the third criminal matter the administration has brought against Comey since Jan. 2025, and the pattern across all three is the same: aggressive timing, procedural defects, no verdict.
| Case | Filed | Charges | Status |
|---|---|---|---|
| Eastern District of Virginia | Sept. 25, 2025 (grand jury indictment) | False statements to Congress; obstruction of a congressional proceeding | Dismissed Nov. 24, 2025 after a judge found the prosecutor's appointment unlawful; DOJ's appeal argued before the 4th… |
| Eastern District of North Carolina | April 28, 2026 (grand jury indictment) | Two felony counts of threatening the president ("8647" seashell photo) | Arraignment delayed to January 2027; trial not expected before February 2027 |
| District of Columbia | Oct. 5, 2026 (criminal information, unsealed Oct. 26) | Transmitting national defense information; conspiracy to transmit it | Comey's motion to dismiss as time-barred is pending before Judge McFadden |
Source: Court filings reported by NBC News, CNN and Carolina Journal
The first case, in the Eastern District of Virginia, charged Comey with lying to Congress about leaks in 2020 testimony. A judge dismissed it after finding that Lindsey Halligan, the sole prosecutor who signed the indictment, had been installed as interim U.S. attorney in violation of federal appointment law; the department’s appeal of that dismissal remains pending at the 4th Circuit. The second, in North Carolina, accuses Comey of threatening Trump’s life by posting a beach photo of seashells arranged to spell “86 47” — 86 being service-industry slang for refusing a customer, 47 being Trump’s number in the presidential sequence. That case has been pushed to 2027 while a judge weighs defense motions arguing selective and vindictive prosecution. Comey has not entered a plea in either pending case.
The timing of Monday’s disclosure compounds the pattern. The same day Judge McFadden unsealed the national-defense-information case, U.S. District Judge Jesse Furman in Manhattan ruled that the department had unlawfully fired Comey’s daughter, Maurene Comey, from her post as an assistant U.S. attorney in the Southern District of New York. Furman’s 55-page opinion found the firing violated the Civil Service Reform Act and ordered retroactive reinstatement with back pay from her July 2025 termination through December 2025. The department said it would appeal. The Associated Press, reporting for NPR, placed the new charge among “a series of politically charged investigative actions the department has undertaken in the run-up to next week’s midterm elections.”
McFadden’s own order, which granted Comey’s request to unseal rather than the department’s, observed that “criminal charges against a former FBI director for his conduct while in office are of significant public interest,” according to CBS News, and noted Comey had already offered to surrender voluntarily, removing any need for secrecy to aid an arrest. Comey, in a video posted to Substack, said: “Well, they’re back again. 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.”
I’m still innocent, and I’m still not afraid of these people, and I still believe in the independent federal judiciary.
What happens next depends on a question of statutory text, not of what Comey did or didn’t tell a reporter in 2016. If McFadden or a higher court holds that Section 19’s “indictment” means indictment, the information is void and the ten-year window closed on Oct. 5 with nothing filed that counts. If he reads it the department’s way, prosecutors still have to get an actual grand jury indictment before Comey can be arraigned, enter a plea or be tried — the information alone cannot put him in a courtroom. Either way, the next filing to watch is not a verdict. It’s whether a grand jury, as opposed to a prosecutor acting alone, ever reviews this case at all.