For the judge in the case, this is not a hard one.
For the judge in the case, this is not a hard one.
I don’t know if it’s accurate to say the president’s lawfare against his nemesis, James Comey, gets more ridiculous with each new episode. What’s sure is that each new episode is ridiculous — and utterly lawless — in its own way. The latest one, an effort to charge Comey with a time-barred leak of alleged national defense information, is notable for what it says about Attorney General Todd Blanche’s stewardship of the Justice Department.
Supporters of Blanche’s confirmation rationalized that he was the best one could hope for in a Trump administration because he’d supposedly look out for the interests of law enforcement despite the president’s disregard for the Constitution, his oath to execute the laws faithfully, and DOJ norms of nonpartisanship. We who opposed Blanche’s confirmation countered that (a) Blanche’s allegiance was to Trump and when it got down to choices between Trump’s retribution agenda and the interests of law enforcement, Blanche would abet Trump in riding roughshod over law enforcement; and (b) the Senate’s Appointments Clause duty in vetting nominees is to be a check on executive lawlessness and thus its obligation was to deny confirmations unless and until the president changed his lawless ways.
The new, utterly lawless attempt to charge Comey illustrates why the naysayers were right. President Trump is clearly annoyed that the DOJ’s multiple attempts to charge Comey have failed to result even in an arrest, much less a conviction — or even a viable case. (In each of the first two prosecutions, Comey was permitted to surrender voluntarily.) In the latest ham-fisted attempt to at least get the former FBI director in handcuffs — the contemplated prosecution would have zero chance of ending in a conviction — Blanche’s DOJ has asked the court to rewrite a statute. That is exactly what the Justice Department customarily argues judges must not do since, if unleashed to do so, judges habitually insert new burdens on the government that make it harder to convict criminals. Indeed, the main thrust of the conservative legal movement over the last half-century (and the not coincidental plummeting of crime rates) is that judges must apply the law as written.
The new case could not be more stupid. Over a decade ago, in early October 2016 when Comey was the Obama-appointed FBI director, Reuters incorrectly reported that the government had invoked the controversial Section 702 of the Foreign Intelligence Surveillance Act (FISA) to compel Yahoo to perform massive surveillance on its users’ emails. Concerned that this would raise public alarm and ire on Capitol Hill (where there is constant agitation to repeal or gut Section 702), the FBI informed the New York Times that the order was more narrow, targeting a computer “signature” that investigators had linked to a specific terrorist organization. The Times article cited two government sources without naming them. One of them, it turned out, was James Baker, then the FBI’s general counsel.
The leak was subsequently investigated by two prosecutors during the first Trump administration, after the president fired Comey in May 2017. The first was then–Connecticut U.S. Attorney John Durham. As Baker later confirmed in testimony and interviews, he had been instructed by Comey’s chief of staff, James Rybicki, to speak to the Times and correct the Reuters reporting (not to compromise substantive details about the investigation but to clarify that the details about how the surveillance was conducted were inaccurate). Baker and a top FBI public affairs officer spoke with a Times reporter. Baker said he did not believe the information he conveyed was classified because he assumed the order to share it came from Comey and, as FBI director, Comey had declassification authority over national defense information generated by the FBI.
This should have been a non-story. I suspect it remained controversial because (a) even the more restrained first-term Trump wanted Comey prosecuted for something — anything; and (b) the NSA also had an equity interest in classified information related to FISA surveillance and was probably unhappy that the FBI had leaked it, likely without consulting NSA officials. In any event, Durham realized there was no way he could convict Baker, who plausibly believed his leak was authorized; and prosecuting Comey would have been futile because he had declassification authority. (Compare: President Trump’s claim that he could not be prosecuted for hoarding classified documents at Mar-a-Lago because he had declassification authority.) Consequently, in 2017, Durham declined to charge Baker or anyone else. The matter was later reevaluated, under the FBI code name “Tropic Vortex,” by the office of Washington, D.C., U.S. Attorney Jessie Liu, a Trump appointee. She declined to charge it in February 2020.
That should have been the overdue end of the story. But because the Trump DOJ is desperate to make a case on Comey — and must figure the absurd “seashells” case is doomed to fail — prosecutors have tried to resuscitate the 2016 leak case. The problem, besides lack of evidence, is timing: The statute of limitations (SOL) on such a charge has already expired and the Justice Department has failed to indict Comey.
The Espionage Act (Section 793 of the Criminal Code), makes the unauthorized disclosure of national defense information a felony carrying a potential ten-year prison term. Let’s put aside the strong evidence that the leak in question was authorized. The Constitution mandates that felony charges be brought by a grand jury indictment. The Supreme Court has not held that this Fifth Amendment provision applies to the states (through the 14th Amendment incorporation doctrine); hence, many states permit prosecutors to file felony charges with neither grand jury nor judicial approval. Federal felonies, however, must be lodged by grand jury indictment unless the defendant waives this right. No exceptions.
The leak to the Times occurred on October 5, 2016. The default SOL for federal crimes is five years (under Section 3282 of the criminal code); but in Section 19 of the 1950 Internal Security Act, Congress provided a ten-year SOL for violations of the Espionage Act (again, Section 793). Nevertheless, Section 19 is precise and unambiguous regarding this exception to the default rule: “An indictment for any violation of . . . section . . . 793 . . . may be found at any time within ten years next after such violation shall have been committed.” (Emphasis added.)
The Justice Department has been having a hard time convincing grand juries to approve indictments that are patently part of President Trump’s lawfare campaign. This is especially true in Washington, D.C., where the jury pool is heavily Democratic and can be tough for prosecutors even in meritorious cases. Since D.C. is the venue for charges based on actions taken by Comey at FBI headquarters, any indictment would have to be sought there.
Trump DOJ prosecutors have not wanted to face a grand jury with so weak a case; yet they did want to charge Comey so they could place him under arrest. So three weeks ago — on Monday, October 5, 2026, the day the SOL lapsed — the government filed a criminal information, which is a charge formally alleged by a prosecutor, but not presented to and found (or approved) by a grand jury. The information charged Comey with two felony violations of Section 793 (causing and conspiring to cause the leak). As all federal prosecutors know, an information may not commence a felony case without an express, knowing waiver from the defendant; Comey, to the contrary, has not waived his Fifth Amendment grand jury right.
Plainly aware that they were in the wrong, the prosecutors, in filing the criminal information, represented to the court that they needed the charges to be sealed because the information — facts about which have been well known for a decade — alludes to unindicted coconspirators and thus public disclosure could “compromise” the investigation and “endanger cooperating witnesses.” Hearing only from the government (as is standard before charges are made public), the court granted the sealing order. That meant that, when told Comey was being charged, he and his lawyers would be barred from publicly discussing the case. Then, late that evening, the government notified Comey’s counsel about the charges in the information and the sealing order. As Comey’s lawyers have recounted in a motion to dismiss the charges, prosecutors also refused to discuss allowing Comey to voluntarily surrender on the new charges — meaning they wanted to orchestrate an arrest.
The Trump DOJ knows that the criminal information is insufficient: As Comey’s attorneys elaborate, they heard from members of the press that prosecutors planned to seek an indictment by the end of the week. Comey thus moved to dismiss the criminal information and asked for an emergency hearing Friday, October 9. At the hearing, before Judge Trevor McFadden, a Trump appointee, prosecutors conceded that they had been planning to seek an indictment that day but agreed not to seek one during the ensuing 30 days to give the court time to consider the dismissal motion.
The decision should be an easy one. As noted above, Section 19 says the SOL expires in ten years unless an indictment is returned by a grand jury before then. There was no indictment by October 5, so the SOL has run out. Yet, in a desperate attempt to prolong the inanity, the Trump DOJ is urging Judge McFadden to rule that Congress used “indictment” as shorthand to include “information.”
As the prosecutors well know, indictments and informations are very different charging instruments — a difference of constitutional dimension. Because defendants have a Fifth Amendment right not to be charged with a felony unless a grand jury approves, the Justice Department generally resorts to an information only in the plea bargain situation, when a defendant agrees to plead guilty to a charge and, to get the benefit of that deal, agrees to waive indictment and thus spare prosecutors the trouble of a grand jury presentation. There are some cases in which defendants agree to waive indictment outside the plea bargain context, but they are rare — and even when they happen, the court must extensively question the defendant to ensure that he knows his rights and is waiving them voluntarily. Comey has not waived anything, so to allow a criminal information to toll the SOL would violate his rights.
More to the point, the statute is unambiguous. Congress addresses charges brought by information in many provisions of criminal statutes and rules. If it had wanted to toll the Espionage Act SOL by information, it would have said so — and undoubtedly, it didn’t say so because without the consent of the accused an information in a felony case is a nonstarter. Indeed, the statute uses the word found in conjunction with indictment; that’s because probable cause for an indictment must be found by a grand jury — a criminal information does not involve any finding.
Furthermore, the Supreme Court has been adamant, time and again, that when a statute is clear, judges are not at liberty to graft on it terms that Congress did not include. This line of authority is to the great advantage of federal prosecutors because (a) most criminal statutes are clear, and (b) experience teaches that when judges believe they are at liberty to rewrite them, such rewriting tends to benefit defendants with either additional prosecutorial burdens or additional due process safeguards — both of which have often been considered and rejected by Congress in writing the law.
A well-run Justice Department would never countenance prosecutors encouraging courts to rewrite statutes. Such a practice would flout the rule of law and thus undermine law enforcement. That is the standard DOJ position. It is also the classic conservative textualist position: Congress writes the laws; the courts must adhere to them, not alter them. But the president, who was the attorney general’s private client, wants Comey charged. If it’s a choice between what Donald Trump wants, no matter how irregular, and what’s good for law enforcement and the DOJ’s reputation, AG Blanche goes with Trump.
Judge McFadden is scheduled to rule next week, if not before. This is not a hard one.