Comey lawyers fight for dismissal of third criminal prosecution

Lawyers for James Comey tried to persuade a federal judge Friday that the Trump administration’s third attempt to prosecute the former FBI director for allegedly disclosing national defense information should be stopped because the Department of Justice (DOJ) waited too long to bring the charges.

U.S. District Judge Trevor McFadden, an appointee of President Trump, is weighing whether the criminal case against Comey should be thrown out. He did not rule from the bench.

One of Comey’s attorneys, Ephraim McDowell, told the judge during a hearing at the federal courthouse in D.C. that the case was “time barred and must be dismissed.”

“The government has had 10 years,” McDowell said, arguing that the DOJ waited until the “last minute” to pursue the charges.

Comey is facing two espionage-related charges in connection with the alleged leak of sensitive national defense information to the media a decade ago. Comey has denied any wrongdoing.

“Nothing’s changed with me,” he said in a Monday afternoon video posted to his Substack account . “I’m still innocent, but I’m still not afraid of these people, and I still believe in the independent judiciary.”

He was not present in the courtroom; however, it was the first time proceedings in the case were held in the open as it had been under seal since Monday.

The DOJ alleges that Comey directed an individual within this office on Oct. 5, 2016, to share classified information with a New York Times reporter to correct information that had earlier appeared in a separate Reuters article.

Comey is seeking to dismiss the case, arguing it is invalid because prosecutors did not secure an indictment before the 10-year statute of limitations ran out. McDowell asserted that federal law was “unambiguous” about that requirement.

“I think you should hold the government to the words Congress wrote,” he said.

His lawyers also noted that the disclosure had been investigated by two separate U.S. attorneys’ offices previously, both of whom declined to bring charges.

The new charges were brought by criminal information, which is filed only by a prosecutor and does not require the input of a grand jury.

DOJ attorney Dustin Farahnak acknowledged that the government used that method to “toll the statute of limitations” while it continues to present evidence to a grand jury. He urged McFadden not to rule on Comey’s request until that process was played out.

“We had a clock problem,” Farahnak said.

McFadden also questioned if Comey’s dismissal motion was premature, asking McDowell what the “harm” would be waiting to see what the grand jury does.

“Aren’t we getting a little ahead of ourselves?” the judge asked.

McDowell argued the prosecution shouldn’t be “hanging over Mr. Comey’s head,” noting that FBI agents had been stationed outside his home.

When the judge warned that he would be “extremely frustrated if there’s some kind of dawn raid,” Farahnak assured that was “not going to happen.”

The DOJ has faced setbacks as it tries to pursue politically sensitive cases in Trump’s second term, with grand juries showing more reluctance. A federal grand jury on Monday declined to indict former White House aide Cassidy Hutchinson in connection with congressional testimony she gave related to the Jan. 6, 2021, attack on the Capitol, according to reports.

“Ham sandwiches are harder to indict these days,” McFadden joked during the hearing, referencing an old adage.

It is the third time since the start of Trump’s second term that the Justice Department has pursued criminal charges against Comey, a move critics see as part of a pressure campaign from the president to investigate his perceived political enemies.

An attempt to prosecute him last year for allegedly lying in 2020 congressional testimony fell apart after a federal judge found that the prosecutor who secured the indictment, Lindsey Halligan, had been unlawfully appointed as the interim U.S. attorney in the Eastern District of Virginia.

Comey is also pushing to have a case against him in North Carolina tossed, arguing the charges brought by the DOJ over a since-deleted social media post of seashells arranged to read “86 47″ are vindictive.

Trump and his allies widely interpreted the post to be a deliberate threat against the 47th president, but Comey has maintained that he did not know the numbers could be associated with violence.