A federal judge on Monday unsealed a criminal case against former FBI Director James Comey, whose lawyers argue the charges should be dismissed because prosecutors did not obtain a grand jury indictment within the statute of limitations.
The government had 10 years to bring the case “by obtaining a grand jury indictment,” Comey’s attorneys said. Prosecutors instead filed a criminal information, a charging document that does not require grand jury approval. Comey cannot be tried on it unless he waives his right to an indictment.
U.S. District Judge Trevor McFadden unsealed the case, noting that the facts underlying the investigation “have been subject to considerable press coverage.” While it is not unusual to “initially seal a charging instrument,” McFadden said, such documents are usually sealed to help apprehend a defendant.
Prosecutors say the charges are timely. A Justice Department spokesperson said the filing was meant to “toll,” or pause, the statute of limitations.
“Filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals. This is an ongoing criminal investigation, and we will not comment further,” the spokesperson said.
The new case is the third brought against Comey since President Donald Trump began his second term. A judge dismissed the first case after prosecutors faced questions about whether a grand jury had approved the indictment.
In April, Comey was indicted in North Carolina on charges that he threatened Trump by posting a photograph of seashells arranged to read “8647.” Comey has maintained his innocence.
Comey attorney Patrick Fitzgerald said the first case was dismissed after “the Department of Justice used a person who was not actually a United States Attorney to seek an Indictment that was not actually shown to the grand jury. And it charged Mr. Comey with crimes that he did not commit. That case was promptly and properly dismissed.”
Fitzgerald said the latest case concerns an article “that two different teams of prosecutors investigated during the first Trump administration. Both times the Government determined that no charges should be brought against anyone. Now, ten years after the article was published, the Government filed an ‘Information’ against Mr. Comey that was not approved by a judge nor issued by a grand jury” and “purports to charge Mr. Comey with crimes that he did not commit.”
“Mr. Comey will fight these charges vigorously and in the open,” he said.
The charges were unsealed the same day a federal judge ruled that Comey’s daughter, Maurene Comey, had been unlawfully fired from the Justice Department last year and ordered her reinstated.
