A federal judge in D.C. considered Friday whether to dismiss the latest set of charges against former FBI director James B. Comey or allow the Justice Department to continue with the case — its third federal prosecution of him in the last 13 months.
U.S. District Judge Trevor McFadden, who was nominated to the bench by President Donald Trump during his first term, asked probing and skeptical questions of prosecutors and defense attorneys alike as they debated whether the statute of limitations had lapsed for the national security crime Comey is accused of committing.
McFadden did not indicate when he would issue his ruling and told prosecutors that he would be “extremely frustrated if there was some sort of dawn raid” at Comey’s home while his decision is pending.
Prosecutors assured him there would be no such raid.
The hearing stemmed from an unusual criminal information prosecutors filed against Comey this month, charging him with two counts alleging that he leaked sensitive government material to the media in 2016 while serving as FBI director.
Trump fired Comey the following year, and the two have frequently sparred ever since.
The Justice Department said it charged Comey through a criminal information — rather than securing an indictment through a grand jury — because the statute of limitations was running out on the alleged crime. The 10-year statute of limitations was set to take effect the day Comey was charged.
Prosecutors will eventually need to secure an indictment through a grand jury if they want to proceed with the case.
The hearing Friday centered on whether using a criminal information was a valid legal maneuver to charge someone with a national security crime as a way to pause the statute of limitations.
Comey’s attorneys said no, pointing to the text of the national security crime he is accused of committing, which specifies that any charges may be indicted before the 10-year statute of limitations and does not refer to the possibility of a criminal information as way to pause the deadline.
“The government is wrong, and the statute of limitations has run,” said Comey’s defense attorney, Ephraim McDowell.
Federal prosecutors said their interpretation of the statute does not exclude the possibility of other charging vehicles, including a criminal information.
The prosecutor, Dustin Farahnak, suggested that the Justice Department may present more information to a grand jury to charge Comey on similar allegations involving actions he allegedly took in 2017. But Farahnak said he was unsure if that would happen.
Under the statute Comey was charged with this month, the statute of limitations for anything that allegedly occurred in 2017 would not have lapsed yet.
“We had a clock problem with a complex, important case, and we looked into the law, and we followed it,” Farahnak said.
McFadden weighed throughout the hearing whether he should rule on Comey’s motion to dismiss the case or wait and see if the government secures a grand jury indictment. He said considering the constitutionality of a criminal information in this instance could be a fruitless exercise if, for example, a grand jury declines to indict the case.
“It turns out ham sandwiches are harder to indict these days,” McFadden joked.
McFadden was seemingly making a joking reference to the famous saying that prosecutors could get a ham sandwich indicted. That adage took on new meaning last year when a grand jury declined to indict a former Justice Department employee who threw a sandwich at a federal agent in D.C.
Comey’s attorneys said that statutes of limitations are, in part, intended to protect a defendant’s rights and that it would be unfair to the former FBI director to have the possibility of an indictment looming 10 years after the alleged misconduct occurred.
The criminal information represents a threat “hanging over his head,” McDowell said.
The latest charges were originally filed under seal earlier this month, but McFadden this week sided with Comey’s request to unseal them. The judge said federal prosecutors did not object to his request.
The hearing Friday did not delve into the specific allegations against Comey. But in court papers this month, Justice Department officials said that Comey directed his staff to speak to a New York Times reporter about U.S. email surveillance in October 2016, “and thereby illegally transferred classified information.”
According to court documents, prosecutors allege that Comey wanted his staff to talk to the reporter to address what they viewed as misinformation in an article published by another news outlet the previous day.
The resulting Times article included information that was “significantly similar” to details contained in an internal government email sent to about 30 people in the U.S. intelligence community hours before the story was published, prosecutors alleged. They said this information is what Comey directed his staff to leak to the reporter.
The case marked the third time the Trump administration has brought charges against Comey since last year.
Comey was charged in Virginia with lying to Congress, a case that was thrown out when a federal judge concluded that the prosecutor who brought it had been illegally appointed. The Justice Department has appealed and is seeking to revive that case.
The former FBI director was also indicted in North Carolina on allegations that a photograph he posted on social media was threatening to Trump. Comey has denied wrongdoing.
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