After Watching Its Earlier Indictments of James Comey Collapse, Trump's Justice Department Charged the Former FBI Director Yet Again — This Time With Two Espionage Act Counts Over an Alleged 2016 Leak of National-Defense Information to a Reporter — but Filed It as a Bare "Criminal Information" on the Very Last Day Before the Ten-Year Clock Ran Out, Without a Grand Jury, a Maneuver Legal Experts Say Likely Cannot Stop the Statute of Limitations and That Comey Can Simply Refuse to Consent To

When a prosecutor has a real case, it is filed cleanly, in time, by a grand jury of citizens who agreed there was probable cause. When a prosecutor has a grudge and a deadline, it is filed the way the Justice Department just filed against James Comey: on the last possible day, without a grand jury, as a paper that legal experts say probably cannot even stop the clock it was racing. The form of this charge tells you most of what you need to know about its substance.

The charge

Unsealed on October 26, 2026, the filing accuses Comey of two crimes under the Espionage Act: willfully communicating national-defense information to a person not entitled to receive it, and conspiring to do so. The government's theory is that Comey acted "through one or more co-conspirators," directing an unnamed individual to disclose national-defense information to a reporter for a national news publication — reported to be the New York Times. The alleged conduct is dated to October 5, 2016: a full decade before the charge was brought. The case was assigned to Judge Trevor McFadden, a Trump appointee, in the District of Columbia.

Why the calendar is the whole story

The Espionage Act charge carries a ten-year statute of limitations. Counted from the alleged October 5, 2016 conduct, that window closed on October 5, 2026. And that is the exact day the Justice Department filed — not an indictment, but a "criminal information," a charging document a prosecutor can file without going to a grand jury. The reason that matters is simple and damning: the government apparently could not persuade a grand jury to indict Comey in time, so it filed a placeholder on the deadline to try to freeze the clock. There are two problems with that, and both are serious:

• Legal experts — including former federal prosecutor Elie Honig, commenting for CNN — say a criminal information filed without a grand jury indictment or the defendant's consent likely cannot toll the ten-year limitations period. If that is right, the clock already ran out, and there is nothing left to charge.
• Even setting the clock aside, a felony defendant cannot be tried on a criminal information alone — he has a constitutional right to be indicted by a grand jury, and can only be tried on an information if he waives that right. Comey has no earthly reason to waive it, and won't.

So the government has filed a charge it may not legally be able to pursue, over conduct whose deadline it appears to have missed, using a shortcut the defendant can neutralize simply by declining to cooperate. Comey's lawyers moved to dismiss, arguing the statute "explicitly demands" an indictment the government never obtained and that the charge is time-barred.

The DOJ's defense, stated fairly

The department's position belongs in the record. A DOJ spokesperson said it had "filed a waiverless criminal information to toll the statute of limitations" regarding the Comey allegations, and that this practice has been approved by multiple Circuit Courts of Appeals; prosecutors say they still intend to seek a grand-jury indictment. That is a real legal argument, and it is possible a court will accept it — the tolling question is genuinely contested, not frivolous. But notice what the DOJ is effectively conceding: that it did not have a grand-jury indictment by the deadline, and that it is relying on a procedural maneuver to keep a decade-old case alive long enough to try to build one. That is not the posture of a prosecution confident in its evidence. It is the posture of a prosecution determined to charge a particular man no matter what the calendar or the grand jury says.

The pattern this completes

This is the third time the Trump administration has tried to put Comey — the FBI director Trump fired in 2017, and a fixture of the president's enemies list ever since — in a courtroom, and the first two attempts are instructive. One earlier indictment was thrown out over the invalid appointment of the U.S. attorney who brought it; another, the almost self-parodying case this archive documented that was built around a photo of seashells, collapsed as well, with its hand-picked, inexperienced prosecutor stepping aside. A separate case in North Carolina, over an Instagram "86 47" post read as a threat, remains pending. Three swings, a rotating cast of theories — false statements, seashells, and now a ten-year-old Espionage Act leak — and the one constant is the target. When the charges keep changing but the defendant never does, the investigation is not following the evidence to a suspect; it is following a suspect in search of evidence. That is the definition of a political prosecution.

Why it belongs here

The rule that protects all of us is that the government must have a real case, brought the right way, within the time the law allows, validated by a grand jury of ordinary citizens — and that it cannot simply keep re-charging a person the president dislikes until something sticks. This filing runs at every part of that rule at once: a deadline apparently missed, a grand jury apparently unpersuaded, a shortcut of contested legality deployed to paper over both, all aimed at a man whose real offense was crossing Donald Trump. Comey may well beat it, as he beat the others; the statute-of-limitations argument looks strong. But the damage is not measured only in whether a conviction results. It is in the spectacle of the Justice Department spending its credibility and its power on a serial campaign against one of the president's enemies — teaching every future official that angering this president means a decade of prosecutions in search of a crime. "Nothing's changed with me," Comey said. That is precisely the problem: the facts about him have not changed across three cases, only the administration's determination to charge him anyway.