James Comey is back in the news. The United States Department of Justice has filed a criminal information against the former Director of the FBI accusing him of revealing sensitive information to a reporter in 2016. Comey says he is innocent. He has also moved to dismiss the information based on the running of the statute of limitations. This post sets out a timeline of events, describes the most recent developments, and provides some legal context on the parties’ dispute.
Timeline. Here’s a list of important events, mostly from this case but also mentioning the other criminal cases against Comey:
- Sept. 4, 2013: President Obama appoints Comey to lead the FBI.
- Oct. 4, 2016: Reuters publishes an article, available here, stating that webmail provider Yahoo “secretly built a custom software program to search all of its customers’ incoming emails for specific information provided by U.S. intelligence officials.” The article portrays Yahoo’s actions as a response to a “demand” or a “request” from an intelligence agency; it does not indicate that a court ordered the surveillance, nor does it describe in detail the nature of the information sought.
- Oct. 5, 2016: The New York Times publishes an article, available here, stating that “the Justice Department obtained an individualized order from a judge of the Foreign Intelligence Surveillance Court” requiring Yahoo to implement a “spam filter” that also scanned emails for “communications of a state-sponsored terrorist organization.” The Times reports that it was briefed by “[t]wo government officials who spoke on the condition of anonymity.” The gist of the current charges seems to be that Comey either spoke to the Times directly or instructed a subordinate (perhaps then-FBI General Counsel James Baker) to do so, for the purpose of correcting the Reuters story, and in so doing revealed the existence of the previously secret court order or other classified material.
- Early 2017: According to the Los Angeles Times, “[f]ederal authorities . . . began investigating the disclosure in early 2017 . . . [but the lead prosecutor assigned to the matter] wrote a classified memo in December 2018 recommending no criminal charges against anyone in connection with the disclosure.” The Times article is here.
- May 9, 2017: President Trump fires Comey. Reasons mentioned in various media stories include: Comey’s handling of the investigation into Hillary Clinton’s email; Comey’s involvement in the investigation into ties between Russia and the Trump campaign; and Comey’s refusal to pledge his loyalty to President Trump.
- April 17, 2018: Comey publishes A Higher Loyalty: Truth, Lies, and Leadership, a memoir that is critical of President Trump and describes him as “untethered to truth.”
- 2019: Again according to the Los Angeles Times, “the U.S. Attorney’s office for the District of Columbia opened a second investigation of the same matter . . . [b]ut that investigation was closed without any charges filed in February 2020.”
- Sept. 25, 2025: USDOJ obtains an indictment in the Eastern District of Virigina charging Comey with making false statements to Congress and with obstructing a congressional proceeding. This unrelated case is dismissed two months later when the presiding judge rules that the interim United States Attorney who brought the charges, Lindsay Halligan, was unlawfully appointed.
- April 8, 2026: USDOJ obtains an indictment in the Eastern District of North Carolina charging Comey with threatening to kill President Trump by posting “a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out ‘86 47.’” Comey has moved to dismiss this additional unrelated case but as of this writing, the charges remain pending.
- Oct. 5, 2026: The current case begins when USDOJ files a criminal information, available here, charging Comey with revealing national defense information to a person not entitled to receive it, on or about Oct. 5, 2016, allegedly in violation of 18 U.S.C. § 793(d). A second count charges Comey with conspiring to do so; that offense is alleged to have begun not later than Oct. 4, 2026. The statute in question is part of the Espionage Act. Violations are punishable by up to ten years in prison.
- Oct. 16: Comey files a motion to dismiss the information, arguing that the applicable statute of limitations requires an indictment within ten years of the commission of the offense; that an information is not an indictment; and that more than ten years have passed since Oct. 5, 2016.
- Oct. 23: USDOJ states on X that “[f]iling 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.” It also files a response to Comey’s motion to dismiss, arguing that an indictment may “substitute in place of the indictment in a felony case.”
Recent developments. The criminal information was initially filed under seal. Comey moved to unseal the case, USDOJ did not oppose the motion, and on October 26, the presiding judge entered an order unsealing the case. The judge also held an initial hearing on the motion to dismiss, but took the motion under advisement rather than issuing a ruling. In a separate case, but also on October 26, a federal judge in New York ruled that Comey’s daughter Maurene was unlawfully fired from her position as a federal prosecutor last year. On Friday, October 30, the judge held another hearing on the motion to dismiss. Media reports suggest that the judge (Trevor McFadden, a Trump appointee) “seemed skeptical” of the government’s argument but still did not rule on the motion.
Understanding the parties’ arguments concerning the statute of limitations. Comey is charged with violating 18 U.S.C. § 793. That statute was enacted as part of the Espionage Act of 1917 and was revised by section 18 of the Internal Security Act of 1950. Section 19 of the Internal Security Act, which apparently has not been codified, provides that “[a]n indictment for any violation of title 18, United States Code, section 792, 793, or 794, other than a violation constituting a capital offense, may be found at any time within ten years next after such violation shall have been committed.”
Comey’s argument is that the statute requires an “indictment,” not any other charging document. He notes that an indictment and an information are fundamentally different, in that an indictment must be approved by the grand jury while an information may be issued by a prosecutor acting alone. Further, he points to other statutes of limitations where Congress has expressly allowed either an indictment or an information to be used, which tends to support the idea that Congress does not use “indictment” as a blanket term for both implements. See, e.g., 18 U.S. Code § 3293 (providing that certain financial crimes may be prosecuted only if “the indictment is returned or the information is filed within 10 years after the commission of the offense”) (emphasis supplied).
The government’s response points to the general federal statute of limitations for non-capital offenses in 18 U.S.C. § 3283, which allows prosecution only if “the indictment is found or the information is instituted within five years next after such offense shall have been committed.” In the Government’s view, section 19 of the Internal Security Act must be read together with that provision – the Internal Security Act “supplies only the period” (ten years rather than five) but does not displace the rule that an information may be used instead of an indictment. Any other reading, the prosecution argues, would produce absurd results. The government also contends that the use of the word “indictment” alone in the Internal Security Act was the result of cutting and pasting language from another legislative provision, not an intentional legislative choice.
North Carolina readers may see some similarities between this dispute and the controversy over the proper interpretation of North Carolina’s misdemeanor statute of limitations that began with State v. Turner, 250 N.C. App. 776 (2016) (holding that a magistrate’s order was not a presentment or an indictment and therefore did not toll or satisfy the two-year misdemeanor limitations under the version of G.S. 15-1 then in effect), rev’d 371 N.C. 427 (2018), and resolved by State v. Curtis, 371 N.C. 355 (2018) (holding that G.S. 15-1 should be interpreted to allow tolling by citations and magistrates’ orders despite the statute not referencing them explicitly). A number of prior posts address Turner and Curtis, including this one announcing the decision in Curtis.
Conclusion. The goal of this post was to provide accurate and legally detailed information about this current controversy. The existence of multiple statutes of limitations under federal law tends to spawn uncertainty and litigation and may be an argument in favor of a simpler system. By contrast, North Carolina’s is very simple for felonies: there is no statute of limitations for felony offenses.
Given the pace of events in this matter, I expect that we will have a ruling soon, unless the government takes the case to a grand jury. A no true bill from the grand jury would end the matter. On the other hand, the government hinted on Friday that it might submit an indictment with a later end date for the conspiracy charge, which could moot Comey’s argument.
If the government clears the statute of limitations hurdle, a motion to dismiss for selective or vindictive prosecution seems likely. Those issues have arisen in the other criminal cases against Comey, and the fact that this case was brought after such a long delay may provide further grist for the mill.
