A crime that happened in 2016 cannot be furthered by actions in 2017. There could be concealment, but that’s a different crime with a shorter SOL.
Earlier, I posted about Friday’s hearing in the Trump DOJ’s latest attempt to prosecute former FBI Director James Comey, the president’s political enemy. There was one other bit of intrigue at the hearing that should be addressed.
Because the Trump lawfare cases have been so patently weak and vindictive, it is common for Main Justice, under Attorney General Todd Blanche, to recruit prosecutors from around the country to handle such matters — a signal that prosecutors in the district that is the venue for the case are concerned about sullying their reputations with the judges of the district court. The venue for the new Comey case is Washington, D.C., but it is not being handled by the U.S. Attorney’s Office for the District of Columbia. Rather, the charging instrument (as I’ve explained, a criminal information that is legally invalid to commence a felony case) was signed by acting Deputy Attorney General (DAG) Trent McCotter (Blanche’s No. 2), and a top Associate DAG, Aakash Singh. In court, the case is being overseen by Dustin Farahnak, a Justice Department attorney from Texas who is apparently working as a Special Assistant U.S. Attorney under the supervision of McCotter and Singh.
At Friday’s hearing, Politico reports that Farahnak suggested the 10-year Espionage Act statute of limitations (SOL) might not be fatal to the prosecution of a leak that — even if we assume arguendo it was criminal — occurred on October 16, 2016, more than a decade ago. He elaborated that Comey may have participated in actions in 2017, thereby extending the time to indict into 2027. While I’ll reserve judgment until such time, if ever, that we see an indictment, this seems highly unlikely.
The DOJ has reportedly filed two charges. One is a substantive crime — i.e., an actual criminal act, here, the unauthorized dissemination of classified information. The SOL on a substantive offense starts to run when the crime is completed. Here, to repeat, the allegation is that the leak to the New York Times happened on October 5, 2016. Ergo, the 10-year time to indict expired nearly a month ago. End of story.
I presume, then, Farahnak’s reference to post-leak actions in 2017 pertained to the other charge, which is a conspiracy offense — i.e., an agreement between two or more people to commit a crime. In conspiracy, the crime is the agreement, not the offense that is the aim of the agreement (i.e., a person can be guilty of conspiracy even if the criminal objective is not achieved; on the other hand, if the objective is achieved, that is usually the best evidence that there was an agreement). Here, the charge is conspiracy to cause the unauthorized dissemination of classified information.
While the nub of a conspiracy is the meeting of the minds of the conspirators, prosecutors prove conspiracy by showing that the conspirators took actions that furthered the agreement. These are referred to as “overt acts” in furtherance of the conspiracy. On their face, overt acts may appear innocent — a person planning a bank robbery might, say, buy a face mask; the acts need not be criminal offenses in their own right as long as they further the conspiratorial scheme. The SOL for a conspiracy begins to run after the last act in furtherance of the conspiracy occurs. But there’s a critical limitation: once the object of the conspiracy has been achieved, there can no longer be acts in furtherance of it — after all, you can’t further something that’s already happened.
Occasionally, conspirators will take steps after the conspiratorial objective has been achieved in order to cover their tracks. Yet, such acts in the so-called concealment phase do not restart the SOL for the underlying conspiracy. Instead, such acts may further a different crime: obstruction of justice (or conspiracy to obstruct justice).
Of course, on the facts of the Comey investigation, this distinction is one the Trump DOJ needs to avoid. The SOL on obstruction crimes is five years (so if there was an obstructive act in 2017, the SOL would have lapsed in 2022). Since so much time has passed at this point, prosecutors need the benefit of the extended 10-year SOL for Espionage Act crimes in order to justify charging Comey. But concealing a completed Espionage Act crime is not itself an Espionage Act crime — it’s an obstruction crime, so the DOJ would be out of luck.