The U.S. Department of Justice (DOJ) has taken steps to charge former FBI Director James Comey with two counts of violating the Espionage Act. According to court records unsealed Monday, prosecutors filed a criminal information alleging that Comey transmitted national defense information to an unauthorized person in October 2016. This filing marks the third time federal authorities have sought criminal charges against Comey during the current administration.
A DOJ spokesperson stated that the criminal information was filed to preserve the statute of limitations before it expires. A criminal information does not require a grand jury's approval or a magistrate judge's finding of probable cause. Comey's attorney, Patrick Fitzgerald, stated that his client "steadfastly maintains his innocence" and characterized the move as an attempt to charge Comey for crimes he did not commit.
The allegations center on a New York Times article published on Oct. 5, 2016, regarding U.S. email surveillance. The DOJ alleges Comey directed staff to speak with a reporter to correct information that appeared in a Reuters article the previous day. Court filings indicate two prior investigations into this matter—one by Special Counsel John Durham and another code-named Tropic Vortex—resulted in no charges.
For the public, this case highlights the mechanics of federal prosecution and the use of the Espionage Act, which carries significant legal penalties. The 10-year statute of limitations for the alleged 2016 conduct would have expired in October 2026. By filing the information, the DOJ attempts to stop that clock, a move Comey’s lawyers are contesting. If the court allows this maneuver, it could influence future cases where prosecutors face expiring deadlines without having secured a grand jury indictment.
The immediate next steps involve a 30-day period in which the government has agreed to hold off on seeking a formal indictment, following an emergency court hearing. Comey's legal team has already moved to have the information dismissed, arguing the statute of limitations can only be met by an indictment. While Judge Trevor McFadden unsealed the documents on Monday, Oct. 26, due to significant public interest, he has not yet ruled on the merits of the case or the validity of the DOJ's filing strategy.