A federal judge appointed by President Donald Trump warned the Justice Department he would be “extremely frustrated” if former FBI Director James Comey were arrested in a “predawn raid.”
U.S. District Judge Trevor McFadden spoke Friday at the end of a 90-minute hearing in Washington on Comey’s request to throw out the Trump administration’s third criminal case against him, Lawfare senior editor Roger Parloff reported.
McFadden did not rule, and he did not stop prosecutors from asking a grand jury to indict Comey while he weighs the request, Parloff wrote. The president has long sought charges against Comey but has struggled to make them stick.
“I will be extremely frustrated if there is some sort of predawn raid or black pajamas” outside Comey’s home, McFadden said, according to NBC News.
“Your honor, that’s not going to happen,” Justice Department prosecutor Dustin Farahnak replied.
Comey’s lawyers told the judge that FBI agents had been parked outside his home several times recently for unexplained reasons.
They first raised that prospect on Oct. 9, the Friday before Columbus Day weekend, in an emergency filing warning that prosecutors could seek an arrest warrant that day and leave Comey in jail over the holiday weekend.
The Trump-appointed judge also wondered aloud whether he should enforce the law at all. McFadden said he could simply let the government try for an indictment, since the dispute would go away if a grand jury refused. If jurors declined, he said, all of the proceedings would have been an exercise in futility.
“Ham sandwiches are harder to indict these days,” McFadden joked. The line plays on a New York judge’s famous 1985 remark about how easy it is historically for a prosecutor to win an indictment.
The joke came days after a federal grand jury in Washington refused to indict Cassidy Hutchinson, a former Trump White House aide who became a star witness for the Jan. 6 committee. Earlier this year, the department also failed to indict six sitting members of Congress.
Comey attorney Ephraim McDowell objected to McFadden’s proposal, noting that the move would deny Comey the protection the deadline law is supposed to give him.
Prosecutors charged Comey with an “information,” a document they sign themselves with no grand jury or judge approving it. Under federal law, a person charged with a felony can’t go to trial on one unless he gives up his right to a grand jury, which Comey hasn’t.
“I have never heard of proceeding by information to toll the statute of limitations,” former Justice Department Inspector General Michael Bromwich told CBS, using legal terms for pausing the deadline to bring charges.
Under federal court rules, prosecutors must charge a felony by indictment unless the defendant waives that right.
The Justice Department disputed that the move against Comey was unusual, calling it “a widely recognized practice in federal court.”
Prosecutors filed the charge on Oct. 5, exactly 10 years after a 2016 New York Times story that prosecutors say drew on classified information Comey authorized his staff to share. Comey maintains his innocence, his attorney Patrick Fitzgerald told CBS.
Two earlier Justice Department investigations looked into the same leak: one started in 2017, and one closed in February 2020, and neither brought charges.
That means a leak the department twice declined to charge reached court on the last possible day, and unless McFadden rules that the filing stopped the clock, the case would be over.
Most federal crimes carry a five-year deadline that can be met with an indictment or an information, but the law that stretches the deadline to 10 years for Comey’s charges mentions only an indictment, Parloff noted.
Prosecutors have also argued that McFadden cannot legally rule on Comey’s challenge until a grand jury indicts him. It wasn’t clear whether the judge agreed with that interpretation of the law.
Prosecutors agreed on Oct. 9 to hold off on seeking an indictment for 30 days. ABC reported it was unclear whether McFadden would rule before that window closes and prosecutors are free to go to a grand jury.
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