A federal judge in Washington on Friday sounded open to allowing the Trump administration’s third and latest criminal case against James Comey to proceed so a grand jury can decide whether to indict the former FBI director.
The Justice Department sought to charge Comey with Espionage Act violations, alleging he illegally disclosed national defense information to The New York Times in 2016. But prosecutors did not secure a grand jury indictment within a 10-year statute of limitations.
Instead, DOJ officials this week unsealed criminal information — a charging document with a lower legal threshold — seeking to preserve their ability to prosecute him.
Comey’s lawyers are challenging the unusual move, arguing that prosecutors were required to obtain an indictment to keep the clock running.
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Judge Trevor McFadden questioned why he shouldn’t simply allow grand jurors to continue weighing evidence in the case and see if they issue an indictment. They may ultimately refuse, he said.
“It turns out ham sandwiches are harder to indict these days,” McFadden commented, referencing a well-worn legal expression that a grand jury would indict a ham sandwich if asked.
Comey’s attorney, Ephraim McDowell, said the government had a decade to pursue charges and “waited until the last minute” after the statute of limitations had expired.
“The time has come to an end,” he told the judge.
Allowing the charges to linger while grand jurors deliberate would be unfair to Comey, McDowell said. He said FBI agents had appeared outside Comey’s home.
“That’s a real threat that has been hanging over Mr. Comey,” McDowell said. “He should get to rest and not face the possibility of criminal charges.”
McFadden stopped short of ruling from the bench, but gave the government a firm warning while he considers his next steps.
“I will be extremely frustrated,” he said, “if there’s some sort of dawn raid or black pajamas turning up outside Mr. Comey’s home.”
The government’s lawyer, Dustin Farahnak, responded, “That’s not going to happen.”
Much of Friday’s hearing centered on whether federal law permits the DOJ to substitute a criminal information — which does not require a finding of probable cause — for a grand jury indictment.
Farahnak told the judge that they were essentially the same legal tools for the purposes of this case. He pushed back on the defense’s argument that prosecutors had waited too long, saying they had found new evidence and needed time to present.
“We had a clock problem with a complex and important case, and we looked at the law, and we followed it,” Farahnak said.
The crimes alleged in the government’s two-count indictment date back to Oct. 5. The government filed the criminal information under seal exactly 10 years later to the day.
Farahnak said grand jurors were still considering evidence and that prosecutors were “still going to the grand jury diligently.”
He said he didn’t think the proceedings would harm Comey, contending that the case was not an “abusive hypothetical where a defendant has an indictment hanging over their head.”
Comey is facing a separate federal charge in North Carolina over a social media post that prosecutors say constituted a threat against the president’s life. A federal judge last year threw out another indictment accusing Comey of lying to Congress.
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