Before a court considers whether former FBI Director James Comey committed a crime, it must decide whether the Justice Department brought the kind of charge Congress required before the statute of limitations expired.
The answer would matter in any federal prosecution. It matters even more here because the case revealed Monday cannot be separated from President Donald Trump’s lengthy public campaign against Comey.
Since firing Comey as FBI director in 2017, Trump has repeatedly called him corrupt and demanded that he be prosecuted. This was no private frustration. Trump put his wishes in writing online. He pressed then-Attorney General Pam Bondi to pursue Comey and other perceived enemies last September. “They’re all guilty as hell,” he wrote, adding that “JUSTICE MUST BE SERVED, NOW!!!” Days later, Comey was indicted.
That first prosecution, involving Comey’s congressional testimony, was dismissed because the prosecutor who obtained the indictment had been unlawfully appointed. A second case, based on Comey’s “86 47” seashell photograph, remains pending.
The latest case dates to October 2016. Prosecutors allege that Comey directed someone to provide a reporter with national defense information about a secret court order requiring Yahoo to scan emails for messages potentially connected to a foreign terrorist organization. Comey denies wrongdoing, and his lawyers say the matter was previously investigated twice without charges being brought.
On Oct. 5, exactly a decade after the alleged conduct, Justice Department lawyers filed a criminal information under seal. A “criminal information” is a formal accusation signed by a prosecutor. An indictment contains similar allegations but with one crucial addition: A grand jury has heard the government’s presentation and agreed that probable cause exists to bring the charge.
Informations are legitimate in the right circumstances. They are commonly used when defendants intend to plead guilty and formally waive their right to an indictment. Comey has not waived that right, and the Justice Department does not appear to claim that it could take him to trial on the information alone. The government’s narrower position is that filing the information kept the case alive, leaving prosecutors free to obtain an indictment later.
The ordinary five-year statute cannot save this case.
Under the ordinary federal statute of limitations, that argument is not especially strange. The general rule gives prosecutors five years to bring most federal charges. It says the government acts in time if an “indictment is found” or an “information is instituted.” Applying that language, courts have allowed prosecutors to file an information before the deadline and obtain an indictment afterward, even without a defendant’s waiver.
But the ordinary five-year statute cannot save this case.
To prosecute Comey over conduct alleged to have occurred in 2016, the Justice Department is relying on a special provision giving the government 10 years to charge certain national defense offenses.
That provision is worded differently. It says that an “indictment” has to be brought within 10 years. It does not mention an information.
That is where the Justice Department’s theory becomes difficult to defend. The law allowing prosecutors to stop the clock with an information gives them only five years. Essentially, the DOJ is trying to take the 10 years from the first law and the easier filing method from the second — but Congress never combined the two.
Congress clearly understood the difference between an indictment and an information, because both words are used in the general statute. Yet when lawmakers granted prosecutors twice as long to bring this particular category of cases, the statute used only one. If Congress intended both charging documents to have the same effect under the special provision, it wouldn’t have omitted one.
The government says filing an information to preserve a prosecution is widely recognized federal practice. Some appellate decisions permit exactly that. But those cases generally interpret the ordinary limitations statute, the one that expressly includes both charging documents. They do not settle whether prosecutors can use an information under a different provision in which Congress referred only to an indictment.
A statute of limitations is part of the law governing prosecution, not administrative clutter around the edges.
The Justice Department is likely to argue that the special law merely changes the number of years available, leaving the rest of the general limitations framework intact. Comey’s position in his motion to dismiss is that the special provision supplies its own instruction: An indictment must come within 10 years. The statute does not say that prosecutors may file whatever charging paper they have ready at the deadline and obtain the indictment later.
This may sound like legal hair-splitting, but it’s important. A statute of limitations is Congress’ judgment about how long the government should have to place someone in criminal jeopardy. It is part of the law governing prosecution, not administrative clutter around the edges.
These limits exist because evidence grows stale, witnesses disappear, and memories become less reliable. They also reflect a basic principle: The federal government, with its enormous investigative resources, eventually must decide whether it has a case. Congress gave prosecutors a generous period of 10 years for these offenses.
It’s also noteworthy that this allegation did not suddenly appear at the last minute. According to Comey’s lawyers, the disclosure was examined in 2017 and again in 2019 without a criminal case being filed. The Justice Department had years to review the evidence and, if it wished, present the matter to a grand jury.
Federal grand juries traditionally favor prosecutors: No defense is present, the government controls the evidence, and the standard is only probable cause. But that advantage depends partly on trust, and Trump’s Justice Department has squandered a lot by repeatedly pursuing people the president has publicly demanded be charged.
That makes the missing indictment here more significant. An information bypasses even this modest outside check, allowing prosecutors to file an accusation when the president has announced the outcome he wants.
The government had 10 years and missed its deadline. When a president demands a prosecution, the rules should be enforced more strictly, not less.
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