In a rare legal maneuver, the U.S. Department of Justice filed a two-count criminal information against James Comey on October 5, 2026, alleging he transmitted national defense information to a journalist in October 2016. The filing preserves the statute of limitations as the Trump administration pursues its third legal attempt against Comey.
The Essential Facts of the Case
- The Justice Department filed a criminal information rather than an indictment, allowing prosecutors to lodge charges without a grand jury, though the government cannot try Comey on these charges unless he waives that right.
- The charges target an alleged October 2016 disclosure regarding U.S. email surveillance to a New York Times reporter, exactly ten years before the filing date.
- Comey’s defense attorney, Patrick Fitzgerald, stated that two separate prosecutor teams investigated the same article during President Trump’s first administration and declined to bring charges.
The Legal Mechanics of the Third DOJ Filing Against Comey
The Justice Department utilized a criminal information filing to target James Comey just as the ten-year statute of limitations expired on October 5, 2026. According to CBS News, prosecutors are moving to accuse Comey of two violations of the Espionage Act by sharing classified defense materials with unauthorized individuals. Unlike a standard indictment, this charging document does not require grand jury approval or a magistrate judge’s finding of probable cause.
DOJ Charges James Comey Third Time Over 2016 Leak AllegationFederal prosecutors unsealed a criminal information Monday charging former FBI Director James Comey with transmitting and conspiring to transmit national defense information.The two counts stem from an alleged… pic.twitter.com/a6BRbvyyDg
Former prosecutors and defense attorneys noted the unusual nature of the maneuver. Michael Bromwich, a former Justice Department inspector general now practicing as a defense attorney, told CBS News that he had never encountered a situation where a criminal information was filed simply to pause the statute of limitations in this manner. Greg Rosen, a former federal prosecutor who helped lead January 6 cases, told CBS News that in years of practicing in Washington, D.C., he never saw a criminal information used this way, let alone for a third attempt by the same department to charge the same man.
Defending the action, a Justice Department spokesperson told CBS News that filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court approved by multiple Circuit Courts of Appeals. The White House referred questions to the DOJ, where a spokesperson declined further comment, calling the matter an ongoing criminal investigation.
Prior Prosecutions and the Defense Response
This latest legal action follows two previous efforts by the Trump administration to prosecute James Comey. Comey was indicted on allegations of lying to Congress in September 2025, and again in the spring of 2026 for an alleged threat against President Trump involving a social media photo of seashells arranged to spell “86 47.” The first set of charges was dismissed after a judge found that the U.S. attorney who brought them, former Trump lawyer Lindsey Halligan, was illegally appointed. Comey is seeking to have the second set dismissed.
In a statement posted to Comey’s Instagram account, attorney Patrick Fitzgerald declared that Comey steadfastly maintains his innocence and welcomed U.S. District Judge Trevor McFadden’s decision to unseal the case, as Axios reported. Fitzgerald asserted that investigators thoroughly looked into the October 5, 2016 New York Times article twice during the first Trump administration and determined no charges should be brought against anyone.
In a video statement addressing the new filing, Comey remarked, “well, they’re back again,” adding that the case “would almost be funny if it weren’t such an appalling abuse of the Department of Justice, one that we cannot become numb to,” as noted by CBS News. Comey added that his stance remains unchanged, stating that he is still innocent, unafraid, and confident in the independent federal judiciary.
| Legal Action | Timing | Primary Allegation | Current Status |
|---|---|---|---|
| First Indictment | September 2025 | Lying to Congress | Dismissed (Illegally appointed U.S. attorney) |
| Second Indictment | Spring 2026 | Alleged threat via social media post (“86 47”) | Pending dismissal motion |
| Third Filing | October 2026 | Transmission of national defense information | Criminal information filed under seal, ongoing investigation |
Broader Context and Contemporaneous Judicial Rulings
The unsealing of the charges coincided with another notable development in federal court. According to Axios coverage, the most recent Justice Department documentation came to light on the exact date a federal magistrate determined that Maurene Comey—James Comey’s daughter, former federal prosecutor, and veteran litigator of the Jeffrey Epstein and Sean “Diddy” Combs trials—had been wrongfully terminated by the Trump administration.
When asked about the case late Monday, President Trump told reporters he had just heard about it, describing Comey as a “dirty cop” while reiterating that he knew nothing about the specific filing, according to CBS News statements. While the administration says it still plans to seek a grand jury indictment, legal observers continue to evaluate the implications of the charging strategy.
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