Comey asks judge to toss third DOJ case, saying no grand jury acted before deadline

Lawyers for former FBI Director James Comey are in federal court in Washington on Friday. They want a judge to throw out the third criminal case the Trump administration has brought against him in 13 months ¹.

The case involves two alleged crimes from 2016. Comey's attorneys say the government never got a grand jury indictment before the 10-year statute of limitations ran out ¹. A statute of limitations is the legal deadline for bringing charges.

On tapeCBS News · Oct 26

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A case filed without a grand jury or a judge

Prosecutors filed the case under seal on Oct. 5, exactly 10 years after a New York Times story on Yahoo and a secret surveillance court order ¹. It came through a "criminal information," a charging paper filed directly by the government. No judge signed off on it ¹.

The charge alleges that Comey, as FBI director in October 2016, authorized staff to speak to a New York Times reporter to correct the record on another report involving classified information ¹. CNN reported that the two charges accuse him of ordering staff to leak a sensitive national security document ².

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A Justice Department official told CNN the information is not enforceable and that charges have not yet been formally filed. The official described it as an attempt to extend the 10-year Espionage Act deadline, which expired earlier this month ². The official also said the practice is "widely recognized" in federal court ².

Elie Honig, a former federal prosecutor and CNN legal analyst, called it a "bizarre, and likely improper" use of an information. He noted that such a filing typically must be agreed to by the defendant, and Comey did not consent ².

Somebody is dictating this process, saying, ‘Bring the case,’

Comey's team believed the government meant to get an arrest warrant and arrest him after hours on the Friday before Columbus Day weekend, so he would sit in jail over the long weekend ¹. U.S. District Judge Trevor McFadden ordered the case unsealed Monday and set Friday's hearing on the motion to dismiss ¹.

Comey's other cases

The first case, an indictment in September 2025 in the Eastern District of Virginia, was later tossed. A judge found that the prosecutor, Lindsey Halligan, was unlawfully acting as a federal prosecutor ¹.

The second case is in North Carolina. A grand jury there indicted Comey over an Instagram photo of seashells spelling "8647," which prosecutors say was a threat against the president. Comey's team says it was not a threat. A judge has not ruled, and the trial was pushed back to 2027 ¹.

Asked about the new charges, President Trump said he knew nothing about them ². He added his own view of Comey: "I think he's a dirty cop, James Comey, but I know nothing about it" ².

What happens next

McFadden has not yet ruled on the motion to dismiss. If he agrees with Comey, the case ends over the filing deadline ¹².

The hearing comes at the end of a week of political cases in Washington's federal court. A grand jury rejected an attempt to indict Cassidy Hutchinson, a star witness for the House Jan. 6 committee. A magistrate judge also held days of hearings on charges against two former FBI employees ¹.

That matters because grand juries and judges are the checks between a prosecutor and a defendant. Former federal prosecutor Sarah Krissoff said she is relieved the courts are holding that line ¹.

The Record

1. Oct 5, 2026Prosecutors file a sealed criminal information against Comey, 10 years after the New York Times story ¹.
2. Oct 26, 2026The case is unsealed on McFadden's order ¹.
3. Oct 30, 2026Comey's lawyers argue before McFadden that the case must be dismissed because no grand jury indicted him before the deadline ¹.

Sources

1. NBC News, “James Comey’s team in court seeking to toss out third DOJ case against longtime Trump foe” (2026-10-30). nbcnews.com/politics/justice-department/james-comey-team-cou
2. CNN (via KEYT), “Justice Department charges former FBI director James Comey for third time” (2026-10-26). keyt.com/politics/cnn-us-politics/2026/10/26/justice-departm

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