Former FBI Director James Comey’s attorneys are seeking to block a third criminal prosecution by the Trump administration, arguing that federal prosecutors improperly filed charges involving classified surveillance information disclosed to The New York Times a decade ago.
By yourNEWS Media Newsroom
Former FBI Director James Comey is scheduled to appear in federal court Friday, Oct. 30, as his attorneys seek dismissal of two Espionage Act allegations stemming from the unauthorized disclosure of classified national defense information to The New York Times in October 2016.
The case represents the Trump administration’s third attempt to prosecute Comey since President Donald Trump returned to office. Federal prosecutors allege that Comey directed FBI personnel to communicate classified information to a journalist about a secret surveillance program involving Yahoo, which was subsequently described in a newspaper article published Oct. 5, 2016.
According to CBS News, the Justice Department filed a criminal information under seal earlier this month rather than obtaining a grand jury indictment, an unusual procedural step that has become the central issue in the dispute before U.S. District Judge Trevor McFadden, a Trump appointee.
The criminal information contains two counts alleging that Comey knowingly and willfully communicated national defense information to an unauthorized recipient and conspired to disclose such information. Prosecutors contend that the alleged conduct violated federal laws governing the protection of classified national security material.
However, Comey has not been indicted by a federal grand jury or formally charged through a criminal complaint in the new case. His attorneys argue that the government’s decision to proceed through a criminal information fails to satisfy the legal requirements necessary to prosecute the alleged offenses.
The dispute centers on whether prosecutors complied with the applicable 10-year statute of limitations. The alleged disclosures occurred around Oct. 4 and 5, 2016, and the government filed its criminal information Oct. 5, 2026, exactly one decade after the newspaper article appeared.
Comey’s attorneys maintain that federal law requires an indictment within the statutory period and that filing a criminal information without grand jury approval does not preserve the government’s ability to prosecute.
“The criminal information charging Mr. Comey should be dismissed as time barred,” his lawyers wrote in court filings.
They argued that the government’s filing “does not meet the express statutory requirements for an extended ten-year limitations period.”
The Justice Department disputes that interpretation, maintaining that Espionage Act violations carry a 10-year limitations period and that its filing was legally sufficient to preserve the case.
Prosecutors also contend that Comey’s dismissal request is premature because no grand jury indictment has been returned. In their filings, they argued that “there is no indictment to be dismissed.”
The allegations involve an October 2016 New York Times investigation titled “Yahoo Said to Have Aided U.S. Email Surveillance by Adapting Spam Filter.” The article described a classified government order requiring Yahoo to search incoming email traffic for digital signatures potentially connected to a foreign terrorist organization.
According to ABC News’ examination of newly unsealed court records, prosecutors allege that Comey instructed FBI personnel to communicate with a Times reporter after Reuters published information about the surveillance operation that Comey believed was inaccurate.
“The United States’ investigation has uncovered evidence that former FBI Director, James B. Comey, sought to correct misinformation which had appeared in the press by way of Reuters the day before,” prosecutors wrote.
The government’s filing alleges that Comey directed FBI staff to contact the journalist about the accuracy of the surveillance reporting, resulting in the unauthorized transmission of classified information.
The disputed disclosure had already been examined in two federal investigations during Trump’s first presidency, both of which ended without criminal charges.
The first investigation began in March 2017 under then-U.S. Attorney John Durham in Connecticut. Investigators examined communications involving FBI personnel and the New York Times report, including the possible role of then-FBI General Counsel James Baker.
An FBI memorandum indicated that Baker was one of two government sources identified during the investigation. Baker reportedly told investigators that he had received instructions through the FBI chief of staff to speak with the newspaper and understood those instructions to have originated with Comey.
Following a review of interviews, communication records and applicable laws, Durham recommended against prosecution in December 2018.
A second investigation opened in January 2019 through the U.S. Attorney’s Office for the District of Columbia under the code name “Tropic Vortex.” That inquiry also concluded without criminal charges in 2020.
Comey’s legal team cited both investigations in its motion to dismiss filed Oct. 16, arguing that the Justice Department had previously reviewed the same allegations and declined prosecution.
Attorney Patrick Fitzgerald, representing Comey, said the former FBI director “steadfastly maintains his innocence” and intends to challenge the government’s latest allegations.
Following an emergency hearing earlier this month, prosecutors agreed not to pursue an indictment for 30 days while the legal dispute continued.
The new proceedings follow two earlier criminal cases brought against Comey since Trump’s return to the White House.
In September 2025, Comey was indicted in Virginia on allegations involving false statements to Congress concerning his testimony about the FBI’s handling of politically sensitive investigations. A federal judge subsequently dismissed the case after determining that the prosecutor responsible for obtaining the indictment had been unlawfully appointed. The government appealed that ruling.
Comey also faces a separate federal prosecution involving a social media photograph showing seashells arranged to display the numbers “86 47,” which prosecutors allege represented a threat against Trump, the 47th president.
His attorneys have asked the court to dismiss that case, arguing that the prosecution is politically motivated and violates his constitutional rights. The judge overseeing those proceedings has not yet ruled on the dismissal motions.
The former FBI director has maintained that the government’s repeated prosecutions are retaliatory and stem from his longstanding conflict with Trump.
Trump fired Comey in May 2017 while the FBI was investigating Russian interference in the 2016 presidential election and possible connections to Trump’s campaign. The dismissal contributed to the appointment of Robert Mueller as special counsel.
Mueller’s investigation later documented Russian efforts to interfere in the election but did not establish a criminal conspiracy between Trump’s campaign and Russia.
Comey subsequently became a prominent critic of Trump, publicly challenging the president’s conduct and defending aspects of the FBI’s investigations during his tenure.
The latest prosecution also emerged as a separate federal judge ruled Monday that the Justice Department unlawfully terminated Comey’s daughter, Maurene Comey, a former federal prosecutor who handled prominent criminal cases involving Jeffrey Epstein and Sean “Diddy” Combs.
The court ordered her reinstatement and back pay after determining that her dismissal had been improperly influenced by her family relationship or perceived political associations. The Justice Department has indicated that it intends to appeal.
Friday’s proceedings before McFadden will focus primarily on whether the government can lawfully proceed with its new Espionage Act allegations despite the absence of a grand jury indictment and the expiration of the 10-year period since the alleged disclosures.
The court’s decision could determine whether prosecutors may continue pursuing the classified-information case or whether the charges must be dismissed before reaching trial.
Comey has denied wrongdoing in the latest matter, and the allegations have not been established in court.
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