IC Oversight & Policy — 2026-11-01

Federal Judge Unseals Espionage Act Criminal Information Against Former FBI Director Comey

BLUFDOJ's decision to charge Comey by information rather than indictment stakes the entire prosecution on an untested statutory interpretation, giving Judge McFadden a clean procedural off-ramp to dismiss.

U.S. District Judge Trevor McFadden unsealed a two-count Espionage Act criminal information against James Comey on October 26, at Comey's request and without government opposition 12. Prosecutors filed it under seal on October 5, without a grand jury, charging transmission of and conspiracy to transmit national defense information tied to an October 5, 2016 New York Times article 34. Comey moved to dismiss as time barred, arguing that Section 19's ten-year limitations period requires an indictment, while the government's October 23 opposition says an information suffices 3. A Justice Department spokesperson told CBS News the filing was meant to preserve the statute of limitations 1. CBS reported that Durham and the D.C. U.S. Attorney's Office each investigated the matter earlier and brought no charges 1.

Analysis
The case turns on whether Section 19's ten-year window can be met by an information rather than an indictment, and McFadden's ruling will decide whether DOJ's sealed October 5 filing preserved a charge that Durham and the D.C. U.S. Attorney's Office both declined to bring. Department-level signatories, including acting Deputy Attorney General McCotter, and outside special assistant U.S. attorneys show this is a coordinated push. The motion is now fully briefed, and the government's brief adds allegations beyond the information, including emailed talking points and a Comey instruction to brief a Times reporter, which could support a later grand jury presentation. DOJ may be using the information mainly as a placeholder to stop the clock, making the later charging decision matter more than the limitations fight. If the limitations challenge fails, Comey's reliance on James Baker's 2022 testimony that the FBI Director and DNI authorized the disclosure signals a merits defense. Confidence is high, based on Just Security's filings and CBS's DOJ statement, though no ruling or hearing date is visible.
5 sources
  1. DOJ takes steps to charge James Comey again - CBS News
  2. Former FBI Director James Comey faces new federal criminal charges in D.C. - MS NOW
  3. Just the Docs: Unsealed Criminal Information Against James Comey Under Espionage Act - Just Security
  4. BREAKING: James Comey Hit With New Federal Charges - Mediaite
  5. James Comey says DOJ Espionage Act case has 'fatal problem' - Law&Crime

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