Comey’s Problem: The Statute of Limitations Is a Defense, Not a Bar to Indictment

I explained last week the Trump Justice Department’s latest misadventure in Comey lawfare – the third attempt to charge him with felony crimes. To recap, the attempted prosecution for unauthorized dissemination of national defense information is absurd because (a) the government won’t be able to prove an unauthorized leak since James Comey (as FBI director at the relevant time) had authority to declassify information and approve its public dissemination; (b) the actions in question, which happened on or before October 5, 2016, are outside the now-expired 10-year statute of limitations (SOL) for Espionage Act prosecutions; and (c) since we’re talking about felonies, the Constitution requires the case to be brought by a grand jury indictment (unless the defendant waives that right, which Comey hasn’t and won’t), so the criminal information by which the Justice Department sought to lodge the charges on the day the SOL expired last month (October 5, 2026) is a nullity.

In a normal Justice Department, in which the priorities would be law enforcement and maintaining the DOJ’s reputation for integrity with the court and the public, there would be no prosecution. There is far more crime than there are government resources to combat crime, so the DOJ’s cup of potential prosecutions is always overflowing. Hence, the DOJ traditionally does not bring cases that are obviously time-barred because it’s a waste of public resources: If the government brought such an indictment, everyone knows the defense would move to dismiss it; the judge would duly throw it out and wonder aloud whether the prosecutors are either incompetent or up to something diabolical.

The Trump DOJ, however, is not a normal Justice Department. Its top priorities include exploiting the legal processes with which they’ve been entrusted, not to promote the rule of law, but to punish the president’s political enemies – putting them through the anxiety, expense, and humiliation of criminal investigations even when the absence of a meritorious prosecution is patent.

Ergo, we must revisit an issue we recently grappled with in connection with the DOJ’s pursuit of another Trump political foe, Ilhan Omar, namely: how the SOL works in criminal proceedings.

Bottom line: Technically, the SOL is a defense. It is not a bar against the government’s seeking an indictment, but a basis for a court to throw out the case on the defense motion to dismiss.

As I’ve frequently explained, every statutory criminal offense in federal law has essential elements that the prosecutor must prove beyond a reasonable doubt to justify a conviction – and there must be a probable cause showing of these same elements to justify an indictment. Saliently, it is not an essential element of an offense that the government prove the offense took place within the SOL time period; rather, if the government indicts after the SOL has expired, it is up to the defendant to raise this untimeliness as a defense.

A simple example illustrates the difference. To indict for bank robbery, the government must prove, as an essential element of the offense, that the financial institution in question operates under the federal banking system. The SOL for bank robbery is five years. Let’s say a state-chartered credit union with private deposit insurance was robbed. That would be a case the DOJ could not lawfully bring as a bank robbery because the victim was not a federally-covered institution – i.e., the government could not prove an element of the offense. On the other hand, if a federally chartered bank was robbed but the robbery happened six years ago, the DOJ could lawfully bring the case, but then the court would dismiss it, on the defendant’s motion, as time-barred under the applicable SOL.

As I mentioned in last week’s column, Comey’s lawyers moved to dismiss the latest DOJ attempt to charge him in Washington, D.C., federal district court. There, by the luck of the draw, the matter was assigned to Judge Trevor McFadden, an appointee from Trump’s first term. At Friday’s hearing, as Politico reports, Judge McFadden unsurprisingly signaled agreement with the defense argument (which I presaged in the column) that the relevant ten-year statute of limitations can only be satisfied by an indictment found by a grand jury, not a criminal information (a formal allegation by the prosecutor with no grand jury or court approval) of the kind the Trump DOJ has filed.

Nevertheless, Judge McFadden also seized on the fact that, because Comey has not been indicted, there may technically be nothing for the court to act on at this point. The judge seems to have gotten a commitment from the DOJ that it will not seek to arrest Comey based on the charges as filed in the information. But obviously aware that the case is so weak and lawfare so discredited that a grand jury might refuse to indict – as McFadden put it, “It turns out ham sandwiches are harder to indict these days…. Grand juries do surprising things” – the judge appeared to be suggesting that he should not take it on himself to dismiss a case that the DOJ may not even be able to indict.

I opined last week that, since the case is a joke, the Trump DOJ’s objective here seems to be to have agents go out and arrest Comey, even if the charges would inevitably be thrown out. Sure enough, Comey’s attorney Ephraim McDowell informed the court that FBI agents had regularly been “stationed outside Mr. Comey’s house” in Virginia, so that the threat of arrest hangs over his head at all times. McFadden’s asked, “What harm would your client suffer here if I delayed ruling until we seek if the government can even return an indictment?” In response, McDowell urged that the stalking of Comey based allegations that are clearly time-barred would justify McFadden in dismissing the case now.

Having been a federal prosecutor for many years, my experience is that if a good judge gets a credible inkling that the Justice Department is about to take an action that is legally pointless but could cause someone harm, the judge makes clear in strong terms that the DOJ would be well-advised to refrain given the risk of inviting lawsuits against the government and forfeiting the court’s trust.

Judge McFadden appears to be taking a different approach: (a) straining to assume that the Trump DOJ would not bring a pointless indictment (despite evidence to the contrary); (b) hoping that if the DOJ does try to get a stinker of an indictment, the grand jury will refuse to approve it and McFadden won’t have to get involved; and (c) calculating that, if the DOJ does manage to convince the grand jury to bring time-barred charges against Comey, McFadden can cross that bridge when he comes to it. The thinking seems to be: Why make a ruling that is likely to prompt a public rebuke from President Trump unless and until it’s necessary?

Not exactly a profile in courage, but such a calculation would not be legally wrong.