Full Breakdown
James Comey Faces Third Federal Charge Over 2016 Leak
By Drooid · · How we work
In this breakdown
01
The New Criminal Information Filing
The Justice Department filed a “criminal information” charging former FBI Director James Comey with unlawfully disclosing classified material about a 2016 New York Times story on a secret FISA order that required Yahoo to scan emails for terrorist-linked content. The filing, unsealed in early October, was made without a grand-jury indictment to extend the statute of limitations. U.S. District Judge Trevor McFadden, a Trump-appointed judge, will hear arguments on the filing’s legality.
02
Background of the Allegations
The allegation stems from an October 2016 report describing the court-ordered email-scanning program. Two anonymous officials confirmed a FISA judge barred Yahoo from publicly revealing the order. Federal investigators led by John Durham began probing the disclosure in early 2017. Durham’s December 2018 memo recommended no charges. A second inquiry, “Tropical Vortex,” opened in January 2019 and closed without charges in early 2020.
03
Prior Legal Actions Against Comey
Comey has faced two earlier federal prosecutions. The first, filed in Virginia, accused him of lying to Congress in 2020; a judge dismissed it after finding the prosecutor was illegally appointed. A second pending indictment alleges an Instagram photo of seashells arranged as “86 47” threatened President Donald Trump. Comey’s attorneys have sought dismissal of that case as well.
04
Key Players
- James Comey – defendant.
- Patrick Fitzgerald – Comey’s attorney.
- John Durham – former special counsel.
- Trevor McFadden – judge hearing the motion.
- Justice Department spokesperson – defends the filing.
- Donald Trump – former president who dismissed Comey in 2017.
05
Legal Arguments and Official Positions
The Justice Department says filing a criminal information to “toll” the statute of limitations is a recognized practice approved by multiple circuit courts. A spokesperson declined further comment. Comey’s lawyers argue the information does not satisfy the legal requirement for an indictment within ten years of the alleged offense and that only a grand-jury indictment can meet the limitation period. Patrick Fitzgerald noted that earlier investigations concluded no charges were warranted and that the current filing bypasses judicial approval.
06
Political Context and Potential Impact
The filing comes weeks before the 2024 midterm elections and follows other high-profile Justice Department actions, including a criminal complaint against two former FBI officials and a federal search of Representative Ilhan Omar’s Washington home. Critics describe the prosecutions as part of a broader retribution effort against Trump opponents.
07
Conflicting Reports & Gaps
Legal scholars and the Justice Department disagree on whether a criminal information can substitute for a grand-jury indictment to satisfy the ten-year limitation period. The Justice Department cites appellate precedent; Comey’s counsel points to statutory language requiring an indictment. No court ruling has been issued.
08
What’s Next
Comey’s legal team has asked Judge McFadden to dismiss the criminal information. The judge is expected to rule later this month, determining whether the case proceeds to trial or is dismissed on procedural grounds.