The Department of Justice and former FBI Director James Comey have been litigating a two-count criminal information since earlier this month. The charging document, filed in the U.S. District Court for the District of Columbia and made public Monday, accuses Comey of communicating national defense information to an unauthorized person and of conspiracy in connection with an alleged disclosure in October 2016.
Getty Images- James Comey
A DOJ spokesperson tells me, “The Department filed a waiverless criminal information to toll the statute of limitations as it relates to allegations concerning former FBI Director Comey. 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. This is an ongoing criminal investigation, and we will not comment further.”
The government is opposing Comey’s motion to dismiss the charges. Comey argues that a special 10-year statute of limitations for certain Espionage Act offenses applies only when prosecutors obtain a formal grand jury indictment. He contends that the shorter criminal information filed by the government does not qualify and that the charges are therefore untimely under the ordinary five-year limit.
The allegations center on a New York Times story published in October 2016 about Yahoo assisting the U.S. government in monitoring emails. The article relied on anonymous government sources and included classified information that had not previously been made public. Investigators say the details matched an internal government email sent to roughly 30 people in the intelligence community only hours earlier. That email was drafted in response to a Reuters article from the previous day. According to the government, Comey sought to correct what he viewed as inaccurate information in the Reuters report by having staff speak with the Times reporter, resulting in the improper sharing of classified material.
The Justice Department argues that Comey’s dismissal motion is premature. Because the case is proceeding solely by criminal information and Comey has not yet appeared before the court, the government says there is currently nothing for a judge to dismiss. On the statute-of-limitations question, prosecutors contend the 10-year period applies whether the government proceeds by indictment or information. They note that the general federal statute already provides that either charging document can initiate the limitations period, and that the special Espionage Act provision extended only the length of time available—it did not alter which documents are valid for that purpose.
This is the third criminal case the Justice Department has brought against Comey. The investigation remains ongoing, and the department has declined further comment.
