The Trump administration is attempting to prosecute former FBI director James Comey over an alleged classified-information leak, despite his lawyers arguing that the case is invalid and outside the 10-year legal limit for bringing an indictment.
The Justice Department’s allegations were disclosed in newly unsealed court documents on Monday. Prosecutors filed a criminal information, a procedure they say preserves the government’s ability to bring charges while the investigation continues.
Comey’s lawyers have asked a judge to dismiss the filing, arguing that it was not approved by a grand jury or a judge and cannot satisfy the applicable statute of limitations.
“For the third time in little more than one year, the Department of Justice has attempted to charge Mr. Comey with a federal crime,” his lawyer Patrick Fitzgerald said. “Mr. Comey steadfastly maintains his innocence.”
Comey said in a video statement that the latest action was “an appalling abuse of the Department of Justice”. He added: “Nothing’s changed with me; I’m still innocent, I’m still not afraid of these people — and I still believe in an independent federal judiciary.”
The allegation centres on an October 2016 New York Times report about a secret court order requiring Yahoo to scan emails for messages potentially linked to a foreign terrorist organisation. The story cited two government officials who spoke anonymously about an order issued by the Foreign Intelligence Surveillance Court that Yahoo was prohibited from publicly disclosing.
Prosecutors allege that Comey tried to correct misinformation published by Reuters the previous day, directed staff to speak to a New York Times journalist about accuracy concerns, and thereby unlawfully transferred classified information.
The disclosure had already been investigated twice. Federal authorities, including prosecutor John Durham, began examining the matter in early 2017. Comey’s lawyers say Mr Durham recommended in a classified memo in December 2018 that no criminal charges be brought.
A second investigation by the US Attorney’s Office for the District of Columbia began in January 2019 under the code name Tropical Vortex. It was closed without charges in February 2020.
The Justice Department said filing a criminal information to suspend the statute of limitations was “a widely recognised practice in federal court” and had been approved by several federal appeals courts. The department declined to comment further, describing the matter as an ongoing criminal investigation.
Comey and Trump’s long-running legal battle
The attempted prosecution is the latest in a series of legal actions involving Comey since Donald Trump returned to the White House. His lawyers say it is the third time in little more than a year that the Justice Department has tried to charge him with a federal offence.
An earlier case in Virginia accused Comey of lying to Congress in 2020, but a judge dismissed it after finding that the prosecutor who brought the charges had been appointed unlawfully. A separate indictment alleges that Comey threatened Trump through an Instagram photograph of seashells arranged as “86 47”; Comey has sought to have that case dismissed.
Comey was FBI director when Trump entered the White House in 2017, having been appointed by Barack Obama. Trump dismissed him in May that year while the FBI was investigating possible links between Russia and Trump’s presidential campaign.
The two men have remained bitterly opposed since then. Comey later published a memoir portraying Trump in highly unflattering terms, while Trump has repeatedly said Comey should face charges for treason and called him an “untruthful slime ball”.
