Third Attempt: DOJ Seeks Charges Against James Comey

Three separate attempts. That is the number of times the Justice Department has sought to bring criminal charges against former FBI Director James Comey in the last few years. The latest effort, revealed in court records this week, involves a legal maneuver that former prosecutors describe as highly unusual. The government is now targeting Comey with two counts of violating the Espionage Act. The alleged crime stems from October 2016, when Comey supposedly shared national defense information with a reporter for The New York Times.

The timeline of this latest action begins in early October 2026. Prosecutors filed a criminal information under seal. This document was unsealed on Monday by U.S. District Judge Trevor McFadden at the request of Comey's legal team. The filing was designed to stop the 10-year statute of limitations from expiring. The clock on the alleged 2016 leak was set to run out later this month. A Justice Department spokesperson stated that the filing preserves the timeline and that the investigation is ongoing.

The specific allegations center on a New York Times article published on October 5, 2016. The piece, titled 'Yahoo Said to Have Aided U.S. Email Surveillance By Adapting Spam Filter,' cited two anonymous government officials. The Department of Justice claims Comey sought to correct misinformation from a Reuters report the day prior. They allege he directed staff to speak with the Times reporter to verify the accuracy of the story. Patrick Fitzgerald, Comey's attorney, says his client steadfastly maintains his innocence.

This is not the first time authorities have looked at this specific leak. Former U.S. Attorney John Durham investigated the matter in 2017. He determined that James Baker, then FBI general counsel, provided the information at Comey's instruction. Durham recommended that no one be prosecuted. A second investigation by the U.S. Attorney's Office for the District of Columbia, known as Tropic Vortex, closed in February 2020 without charges. Fitzgerald points to this history, noting that investigators twice decided no charges should be brought.

The current filing is procedurally distinct. A criminal information does not require a grand jury vote or a magistrate judge's probable cause finding. It is typically used when a defendant waives their right to a grand jury and pleads guilty. Greg Rosen, a former federal prosecutor who helped lead January 6 cases, said he has never seen such a document used in this manner in Washington, D.C. Michael Bromwich, a former Justice Department inspector general, called the move a way to keep a case alive that deserved to die nine years ago.

Comey and the Justice Department engaged in a behind-the-scenes legal battle during October. On October 9, defense attorneys argued the government filed a faulty document to toll the statute. They warned that prosecutors might seek an arrest warrant immediately, potentially holding Comey in jail over a holiday weekend. They noted that federal officers had surveilled Comey's whereabouts throughout the week. In an emergency hearing, the government agreed to hold off on seeking a formal indictment for 30 days.

The document was signed by Acting Deputy Attorney General Trent McCotter and Principal Associate Deputy Attorney General Aakash Singh. Several special assistant U.S. attorneys not from the local D.C. office also signed it. Judge McFadden ordered the docket unsealed, stating that charges against a former FBI director are of significant public interest. He noted that Comey has offered to self-surrender, removing the need for secrecy. The judge did not rule on the merits of the case.

The filing comes roughly a month before the midterm elections. It is the third major step in a long legal conflict between Trump and Comey. The first attempt, an indictment for lying to Congress, was signed by Lindsey Halligan in September 2025. That indictment was later challenged on appointment grounds. The second attempt, a North Carolina indictment for threatening Trump with a photo of seashells, remains pending. Comey's attorneys argue these actions are politically motivated, while Attorney General Todd Blanche insists local prosecutors drove the decisions.