WASHINGTON (AP) — A federal judge on Friday postponed a decision on whether to dismiss a criminal case filed against the former FBI director. James Comeygiving the Justice Department an opportunity to pursue an indictment over decade-old media leak allegations.
U.S. District Judge Trevor McFadden acknowledged, however, that despite the Justice Department’s hopes, an indictment was not a sure thing in the nation’s capital where grand juries have repeatedly rejected prosecutors’ requests for charges in politically sensitive cases. And he said that in the meantime, he would be “extremely frustrated if there was some sort of dawn raid” to arrest Comey before he could be charged, a concern raised by defense attorneys.
“That’s not going to happen,” prosecutor Dustin Farahnak said.
Comey’s lawyers urged McFadden to immediately stop the Justice Department from prosecuting his third criminal case against President Donald Trump’s outspoken critic and frequent target of the Republican’s retaliatory campaign. They said the Justice Department failed to obtain an indictment within the 10-year statute of limitations and that the charging document prosecutors filed instead, known as a non-waiver criminal information, was legally invalid and inoperative.
“The criminal information in this case is statute-barred and should be dismissed,” said Ephraim McDowell, one of Comey’s attorneys.
A closed-door court battle has been the center of attention this week
The existence of the criminal information was revealed in court documents unsealed Monday that show the Justice Department is pursuing a case against Comey over allegations of disclosure of classified information dating back to 2016 that was previously investigated. An information is a document that is typically filed when a defendant has waived his or her right to a grand jury indictment and intends to plead guilty, but Comey has not waived that right and his lawyers have made clear they are contesting the charges.
The Justice Department defended the move as an attempt to extend the legal deadline for seeking a grand jury indictment. The complaint was filed just as that deadline, known as the statute of limitations, was about to expire, and a prosecutor said Friday that the Justice Department is now presenting evidence to a grand jury for an indictment.
But Comey’s lawyers say the law required the Justice Department to obtain an indictment, not a briefing, within 10 years and that it was unfair for Comey to leave the case open.
“To leave this hanging is a very unfair and unjust outcome,” McDowell said, later adding that Comey would “basically sit here” in limbo under threat of indictment even though the statute of limitations has expired.
McFadden, a Trump appointee, said he understood that point, but joked that “ham sandwiches are harder to blame these days.” This remark was in reference to the oft-quoted colloquialism that indictments are so easy to obtain that even a ham sandwich can be indicted.
Farahnak, the prosecutor, told the judge it was premature to rule now while the grand jury investigation is still ongoing. He suggested that evidence presented to the grand jury would relate to activities stretching back to 2017, putting a potential indictment within the statute of limitations.
McFadden agreed not to make an immediate ruling.
The case is the latest against Comey
Efforts to prosecute Comey, who says he is innocent of the allegations, are part of a series of politically charged investigative actions the ministry has undertaken with a view to next week’s midterm elections.
Comey was fired by Trump in May 2017, while overseeing an investigation into whether Trump’s presidential campaign conspired with Russia to tip the 2016 election in his favor against Democrat Hillary Clinton. The two men have been at bitter disagreement ever since, with Comey comparing Trump to a mobster in a book he wrote and the president accusing him of treason and calling for his imprisonment.
The first criminal case against Comey accused him of lying to Congress in 2020, but it was rejected by a judge which concluded that the prosecutor had been appointed illegally.
Another pending indictment accuses Comey of threatening Trump through an Instagram photo of seashells in the numerical arrangement of “86 47” — 86 is slang meaning “to throw away,” “to get rid of,” or “to refuse to serve,” and Trump is the 47th president. The former FBI director sought to close the case.
“Well, they’re back, again,” Comey said in a video statement Monday. “It would almost be funny if this were not such a terrible abuse of the Department of Justice, an abuse to which we cannot remain insensitive. Nothing has changed for me; I am still innocent, I am still not afraid of these people, and I still believe in the independence of the federal judiciary.”
The latest allegation concerns an October 2016 New York Times article regarding a secret court order requiring Yahoo to scan emails for messages potentially linked to a foreign terrorist organization. The article cited two government officials who spoke on condition of anonymity about a Foreign Intelligence Surveillance Court judge’s order barring Yahoo from making public disclosures.
Prosecutors, in an unsealed filing, said investigators found evidence that Comey “sought to correct misinformation that appeared in the press through Reuters the day before” the New York Times story was published, directed his team to speak to a reporter at the paper regarding accuracy issues “and thereby illegally transferred classified information.”
Federal authorities, including prosecutor John Durham, began investigating the disclosure in early 2017. Durham, who then investigated the conduct of the FBI While examining potential ties between Russia and Trump’s presidential campaign in 2016, he wrote a classified memo in 2018 recommending against criminal charges against anyone in connection with the disclosure, Comey’s lawyers said in a court filing.
In 2019, the U.S. Attorney’s Office for the District of Columbia opened a second investigation into the same case under the code name “Tropical Vortex.” But this investigation was closed without any charges being filed in early 2020.
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