A federal judge unsealed a third case against James Comey on Monday, and the Justice Department built it on a form that Rule 7 of the federal criminal rules allows in a felony only when the defendant waives a grand jury in open court. Comey’s lawyers are calling the filing faulty.
What the Justice Department says
“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.”
What Rule 7 says
An offense punishable by more than a year in prison “must be prosecuted by an indictment.” An information is allowed only if the defendant, “in open court and after being advised of the nature of the charge and of the defendant’s rights,” “waives prosecution by indictment.”
The two counts, unsealed Monday in Washington before Judge Trevor McFadden, charge Comey with communicating national defense information to someone not entitled to it and with conspiring to do so. The information is about a newspaper story. The New York Times reported on October 5, 2016 that Yahoo had adapted an email scanner to satisfy a secret surveillance court order, citing “two government officials who spoke on the condition of anonymity.” Prosecutors say Comey directed staff to talk to the reporter about “specific accuracy concerns” with an earlier Reuters story.
The Last Possible Day
Count it. The Times story ran October 5, 2016. The information was filed under seal on October 5, 2026, exactly ten years later. That is 3,652 days with none to spare. It stayed sealed for 21 more.
A Form Nobody Seems to Have Seen Used This Way
Comey’s lawyer, Patrick Fitzgerald, says the government “filed a faulty information under seal” to stop the clock, and the defense argues the national security statute required an indictment. The department’s position is that the information buys time to get one. In an emergency hearing, the government agreed to hold off on seeking an indictment for 30 days. McFadden has not ruled on the merits.
“I have never heard of proceeding by information to toll the statute of limitations. Most prosecutors you have ever dealt with have never heard of that. This seems to be a way to do an end-run around the statute of limitations and keep a case alive that deserved to die 9 years ago.”
Michael Bromwich, former Justice Department inspector general
Greg Rosen, a former federal prosecutor who helped lead the January 6 cases, said he never saw an information used this way “in years of practicing in D.C.,” let alone in a third attempt to charge the same man.
What the Story Said, and Who Already Looked
We read the Times piece. It is short, it names no document, and every claim in it rests on two anonymous officials and “a third person familiar with Yahoo’s response.” It has been public for a decade.
The department has also looked at this leak before. John Durham recommended against charges in a classified memo in December 2018. A second review, code-named Tropical Vortex, opened in January 2019 and closed in February 2020 with no charges. Nothing in the reporting we read says a new fact surfaced since. The calendar did.
Three Cases in 375 Days
Case one: a grand jury indicted Comey on September 25, 2025, five days before the five-year clock on his 2020 Senate testimony ran out. A judge dismissed it on November 24 after finding the prosecutor who brought it was unlawfully appointed, which we covered. Case two came on April 28, 2026 in North Carolina, over a photo of seashells arranged to read “8647,” and it is still pending. Case three is a piece of paper filed on the last possible day and kept out of view until the defense asked to see it.
Hold on to one detail from case one. When prosecutors took it to a grand jury, the grand jury refused one of the three counts they wanted. That is what a grand jury is for. It is the step in the system that can say no.
What We Think
We think this is a calendar case. Strip the filing down and the new material is a date and a form. The conduct is a decade old, the department’s own prosecutors found nothing to charge twice, and the form chosen is one a former inspector general and a former federal prosecutor say they have never seen used this way. The one time a Comey case reached a grand jury, it trimmed the charges. An information filed on the last day skips that check for now.
Comey says he is “still innocent” and “still not afraid of these people.” What should happen is not complicated. McFadden should decide the time bar before anyone argues about a 2016 newspaper article, because if an information cannot stop the clock, there is no case to argue. If it can, the department has 30 days to put its evidence in front of a grand jury and find out whether citizens agree.