Former senior government lawyer Jack Goldsmith says the Justice Department’s newest case against James Comey was filed too late, in an analysis on his Executive Functions Substack.
On Oct. 5, DOJ filed a “criminal information,” a charging document prosecutors can issue on their own, accusing the former FBI director of violating the Espionage Act over an alleged leak on Oct. 5, 2016. Goldsmith says the law allows ten years to bring the charge, but only through “an indictment,” meaning a grand jury.
DOJ didn’t get one in time, he writes, and Comey never waived his right to one.
DOJ’s reply was that using an information to pause the statute of limitations is a “widely recognized practice” approved by several appeals courts. Goldsmith says those rulings involve the general five-year law, which accepts either document and expired in 2021, and that the Espionage Act’s ten-year rule applies instead. DOJ, he argues, is borrowing the five-year law’s trigger for a ten-year clock that requires an indictment.
The statutes are clear enough that the government’s other arguments shouldn’t matter, he says, and the case should be dismissed.
Goldsmith writes that he feels “a bit silly” raising technical points about a matter, brought by Attorney General Todd Blanche’s allies, that is “so obviously a sham.”
It’s the third attempted criminal case against Comey by President Donald Trump’s DOJ. Last year, he was indicted on charges of lying to Congress, over statements he told the Senate that don’t appear to have been materially untrue. This case was tossed before it could even go to trial, as a federal judge found the prosecutor was illegally appointed. DOJ officials have separately charged Comey with threatening the president over his social media promotion of an arrangement of seashells spelling out “8647.”
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