Comey's Third Case Has No Indictment, and Its 10-Year Clock Is the Fight

The Justice Department filed a criminal information against James Comey on Oct. 5, 2026, 10 years to the day after the New York Times article at the center of the allegation. But the charge is a criminal information, not an indictment, and no court can try him on it.

Filed under seal that day, the document was unsealed Monday, Oct. 26, by U.S. District Judge Trevor McFadden of the District of Columbia, at Comey's request; prosecutors did not oppose. The three-page information, docketed as No. 1:26-cr-00229-TNM, has two counts: transmitting national defense information, and conspiring to do so. Prosecutors allege the conduct happened on or about Oct. 5, 2016, while Comey was FBI director. The statute they are described as using provides for up to 10 years in prison per count. No arraignment date exists, and Comey has not been arrested or asked to plead.

In a video posted Monday, Comey said: "Nothing's changed with me. I'm still innocent." Everything in the filing is an allegation, and McFadden has not ruled on Comey's motion to dismiss. This is the third criminal case the department has brought against him since September 2025, but the headline fact is different. The case is, for now, a holding filing, and what happens to it turns on a deadline question the D.C. Circuit has not answered.

The charge itself is narrow. In wording outlets have quoted, the filing alleges that on Oct. 5, 2016, Comey, "through one and more co-conspirators," directed an unidentified person, called "Individual #1," to "disclose national defense information to a reporter for a national news publication." Other court filings identify the publication as The New York Times, which ran a story that day by Charlie Savage under the headline "Yahoo Said to Have Aided U.S. Email Surveillance by Adapting Spam Filter." It concerned whether the Justice Department sought a Foreign Intelligence Surveillance Court order to make Yahoo search for communications of a foreign terrorist organization.

Prosecutors' account starts a day earlier, with a Reuters story. In a government filing unsealed Monday, Special Assistant U.S. Attorney Dustin Farahnak wrote that the investigation "has uncovered evidence that Mr. Comey directed staff to speak to Mr. Savage about specific accuracy concerns related to the Reuters article, and thereby illegally transferred classified information."

Post by @MacFarlaneNews

The post above shows the filing; it does not prove its allegations. And the gaps are large. The filing does not name the reporter, the outlet, "Individual #1" or the information at issue, and Democracy Docket reported that it does not explain what conduct allowed an alleged conspiracy from 2016 to continue into October 2026.

An information may stop a clock but cannot start a trial

A federal felony "must be prosecuted by an indictment," says Rule 7 of the Federal Rules of Criminal Procedure, the rule that implements the Fifth Amendment's grand jury clause. Under the rule, a defendant can waive indictment in open court after being advised of the charge and his rights. Comey has not.

NBC News reported the consequence plainly: prosecutors "will still need to seek an indictment, if the court permits it, before Comey can be arrested on the charges, arraigned, enter a plea and ultimately be tried."

Comey's lawyers feared arrest enough to file an emergency motion on Friday, Oct. 9, in which they wrote that the government "filed a faulty information under seal" and that Comey had "reason to believe that the government plans to use that information to seek an arrest warrant as soon as today," a move they feared would leave him in jail over a holiday weekend, CBS News reported. After a closed-door hearing that day, the government agreed to hold off on seeking an indictment for 30 days, the defense lawyers later wrote. By a simple count that runs to about Sunday, Nov. 8; no order setting a date had been reported in the coverage reviewed.

Why file it? The Justice Department says it filed a "waiverless criminal information to toll the statute of limitations" (one without Comey's agreement to skip the grand jury), "a widely recognized practice in federal court." Patrick J. Fitzgerald, Comey's attorney, answered that "the Government filed an 'Information' against Mr. Comey that was not approved by a judge nor issued by a grand jury," adding that Comey "will fight these charges vigorously and in the open."

What the government would have to prove

Outlets describe the filing as charging under the Espionage Act, and one reports the section as 793. No outlet has printed the subsection letters, so what follows is the wording of the closest match, 793(d), not a finding about this case. It requires that:

1. the person lawfully had possession of, access to or control over the material;
2. it related "to the national defense", and, if it was information rather than a document, the possessor had reason to believe it could be used to injure the United States or to the advantage of a foreign nation;
3. he "willfully" communicated or transmitted it, "or causes to be communicated" it; and
4. the recipient was a "person not entitled to receive it."

One detail stands out. Prosecutors' filing speaks of "classified information," yet the text of Section 793 does not contain the word "classified." How the two fit is a question for a court.

The conspiracy count adds its own test. If it is brought under 793(g), as its wording suggests, the statute requires an agreement between two or more people and "any act to effect the object of the conspiracy" by at least one, with each party facing the punishment for the underlying offense: up to 10 years. No court has tested any of this, and the coverage reviewed does not describe the government's evidence.

The deadline argument

The five-year limit in 18 U.S.C. 3282 bars prosecution "unless the indictment is found or the information is instituted within five years." For an Oct. 5, 2016 event, that lapsed on Oct. 5, 2021.

Espionage offenses get longer. Cornell's annotation to Section 792 reproduces the 1950 extension, section 19 of the Internal Security Act, as saying "an indictment for any violation of this section and sections 793 and 794 of this title, other than a violation constituting a capital offense, may be found at any time within ten years next after such violation shall have been committed." The word "information" does not appear in it. From Oct. 5, 2016 to Oct. 5, 2026 is 3,652 days: 10 years exactly, the day the government filed.

The government says the two statutes work together: the general law accepts either instrument, and the 1950 Act only lengthens the time. Prosecutors argue that Congress "intended to lengthen the time to prosecute acts of espionage," not "to split that time by instrument." They also call the motion premature, since Comey has not yet submitted to the court's jurisdiction.

Comey's lawyers say the five-year clock expired in 2021 and the 1950 extension helps only an indictment, which was due by Oct. 5, 2026. Their motion asks the court to "enforce the text that Congress wrote and dismiss the information as time barred." The Justice Department points to multiple courts of appeals that accept tolling by information, CBS reported; the D.C. Circuit has not decided.

This is a reading of the texts, with the court yet to rule: the department needs McFadden to accept two steps together. First, that tolling by information, accepted elsewhere, applies in Washington. Second, that it applies to a period Congress wrote for indictments only.

The stakes differ by outcome. If McFadden denies the motion, the information survives and the government can seek an indictment from a grand jury; none of the coverage reviewed says one has been sought or has declined. If he grants it, the case would end as untimely, and 18 U.S.C. 3288 offers no second chance. Its six-month window for a new indictment "does not permit" one where "the reason for the dismissal was the failure to file the indictment or information within the period prescribed by the applicable statute of limitations."

Outside lawyers quoted in the coverage are skeptical. Michael Bromwich, a former Justice Department inspector general now in defense practice, told CBS: "I have never heard of proceeding by information to toll the statute of limitations." Greg Rosen, a former federal prosecutor, called the filing "vindictive"; the department has denied that its prosecutions are politically driven. No outside legal expert defending the filing appears in the coverage reviewed; the only on-record defense is the department's own statement.

The defense also points to history. Per Comey's filings, as AP reported, former U.S. Attorney John Durham began investigating the disclosure in early 2017 and recommended no charges in December 2018. A second inquiry, code-named "Tropical Vortex," ran from January 2019 to February 2020 with no charges.

How this differs from the first two cases

Case	Court and charging step	Alleged conduct	Status as of Oct. 27, 2026
1	E.D. Va.; grand jury indictment, Sept. 25, 2025	False statement and obstruction over 2020 Senate testimony	Dismissed Nov. 24, 2025 (prosecutor unlawfully appointed); DOJ appeal pending in the 4th Circuit
2	E.D.N.C.; grand jury indictment, April 28, 2026	Threat counts over a May 15, 2025 Instagram photo of seashells reading "86 47"	Arraignment moved to January 2027; no trial date; motions to dismiss pending
3	D.D.C.; criminal information filed under seal Oct. 5, 2026, unsealed Oct. 26	Transmitting national defense information and conspiracy, tied to an Oct. 5, 2016 disclosure	No indictment; motion to dismiss pending before Judge McFadden; no arraignment date

Sources: court filings and Justice Department statements as reported; the allegations in all three cases are unproven.

Both earlier cases began with grand jury indictments. The first died on who signed it: Senior U.S. District Judge Cameron McGowan Currie found interim U.S. Attorney Lindsey Halligan unlawfully appointed. The second, described in the Justice Department's April announcement, is a dispute over speech and intent before Judge Louise Flanagan; Comey's lawyers argue it was not a threat.

The third rests on a limitations reading and an event that, per Comey's filings, two earlier Justice Department inquiries reviewed without bringing charges. It is the only case in D.C. and the only one filed without a grand jury. It was also made public the day a federal judge ruled that Maurene Comey, his daughter and a former prosecutor, was unlawfully fired from the Justice Department. AP described the case as part of politically charged actions before the Tuesday, Nov. 3 midterms; CBS described the step as "a maneuver that runs counter to longstanding norms." Another Justice Department action this month, a suit targeting 20,000 California voters without alleging one voted, carries no stated connection to this case.

The three pages are exact about the date and, by the accounts available, thin on nearly everything else, including what kept an alleged 2016 conspiracy running for a decade.