Federal prosecutors told a judge last month that they were considering treating The New York Times as a conspirator in a criminal case accusing James B. Comey, the former F.B.I. director, of leaking sensitive national security information.
The assertion, which came during a closed-door hearing in Federal District Court in Washington, raised extraordinary First Amendment concerns and would, if pursued, mark a major escalation of the Trump administration’s recent attacks against news organizations. It also reflected the White House’s relentless efforts to go after Mr. Comey, who was removed as the F.B.I. director by President Trump in 2017.
During the sealed hearing on Oct. 9, a prosecutor working on the case, Dustin Farahnak, told Judge Trevor N. McFadden that the department had weighed treating The Times as a criminal co-conspirator with Mr. Comey in publishing an article concerning a novel use of a surveillance technique, according to a transcript of the proceeding made public this weekend.
The proceeding stemmed from a case filed against Mr. Comey on Oct. 5 in which prosecutors accused him of making an unauthorized disclosure to The Times of national security information for the article. The article appeared in The Times exactly a decade before the charges were brought in order to fall within the 10-year statute of limitations.
Mr. Comey’s lawyers have asked a judge to dismiss the charges in the leak case, arguing that prosecutors failed to bring it within the statute of limitations. In an unusual procedural move, prosecutors filed the charges without the approval of a judge or a grand jury through a document known as an information, hoping that doing so would comply with the statute of limitations.
The department’s consideration of treating The Times as a conspirator appeared to be an attempt to connect the Oct. 5, 2016, article with subsequent coverage by The Times involving Mr. Comey in a way that they contend could extend the statute of limitations. In conspiracy cases, the statute of limitations is based on the last purported act of the criminal scheme.
“Whether or not The New York Times acted in concert and was a conspirator, which would greatly expand the statute of limitations, is an issue that we had to decide over,” said Mr. Farahnak, the prosecutor, who was brought to Washington from a U.S. attorney’s office in Texas to work on the case.
“The real issue is, who is in the conspiracy and how long did it persist?” he added.
The Justice Department did not respond to a request for comment.
For now, Mr. Farahnak said, prosecutors have decided to charge only Mr. Comey. But remarks that prosecutors made at a subsequent hearing, on Oct. 30, suggest that the prospect of other people or entities being charged remains a possibility.
At that proceeding, prosecutors said that the Justice Department was considering asking a grand jury to bring an indictment not just involving The Times article from Oct. 5, 2016, which concerned surveillance of email traffic on the platform Yahoo, but also involving other coverage dating to April 2017.
The prosecutors appeared to be referring to an article The Times published that month about Mr. Comey’s handling of the investigation the previous year into Hillary Clinton’s emails. The Justice Department later scrutinized whether The Times received classified information from an adviser to Mr. Comey for the article.
If the department were to treat The Times as one of Mr. Comey’s conspirators, it could provide prosecutors with a basis — however tenuous — to link the October 2016 article and the April 2017 article as part of the same plot.
A Supreme Court ruling in 1946 makes it difficult for prosecutors to prove a conspiracy in a situation in which one person acts as a hub and has criminal interactions with two or more people who, like spokes, do not interact directly with each other. The October 2016 and April 2017 articles involved different reporters, but both were published by The Times.
Even this theory of the case, should the department choose to pursue it, could be difficult to prove in court.
During Mr. Trump’s first term, federal investigators scrutinized Mr. Comey’s role in the publication of both articles and ultimately found there was no evidence to support criminal charges. Still, in his second term, Mr. Trump has openly demanded that the Justice Department continue to pursue perceived enemies like Mr. Comey.
The leak case marked the third time in 13 months that the Trump administration has sought to prosecute Mr. Comey, whom Mr. Trump fired as F.B.I. director in 2017.
The Justice Department first charged Mr. Comey in September 2025, accusing him of lying over years-old testimony to Congress. Those charges were later thrown out by a judge.
A second case in North Carolina is set to go to trial next year. It centers on a photograph of seashells on a beach that Mr. Comey shared on social media last year. The shells were arranged to say “86 47,” which prosecutors deemed to be a threat against Mr. Trump.
The revelation that the administration was considering treating The Times as a conspirator in the leak case came one day after the high-profile resignation of John Eisenberg, who had been assistant attorney general for the national security division of the Justice Department.
Mr. Eisenberg, who served in Mr. Trump’s first administration, stepped down because of disagreements with Attorney General Todd Blanche over how aggressively to go after reporters in leak investigations, according to two people familiar with the matter.
The Justice Department under Mr. Trump has already acted aggressively to crack down on what it sees as illegal leaks of sensitive information.
In January, federal agents searched the home of Hannah Natanson, a reporter for The Washington Post, a remarkably aggressive step for an administration to take in investigating a government contractor’s handling of classified information.
Prosecutors have also issued grand jury subpoenas to The Washington Post, The New York Times and The Wall Street Journal. The department withdrew its subpoenas to The Post and The Journal over their reporting on military action in Iran and Venezuela. But it is still fighting over the one it issued to a freelance reporter who had worked with The Times on an article about a failed top secret mission in North Korea.
In July, federal agents served grand jury subpoenas on several Times reporters in an effort to track down leaks about the security concerns of the Air Force One jet donated to Mr. Trump by Qatar.
Prosecutors ultimately withdrew the subpoenas after a federal judge in Manhattan grilled them for nearly an hour over whether they had heeded the law and the department’s own regulations in issuing them in the first place.
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