One question stands out in the Justice Department’s third attempt to charge former FBI Director James Comey: Why did prosecutors bring those charges by what’s called an information, not an indictment? The DOJ’s failed attempt last week to secure a grand jury indictment of former White House aide Cassidy Hutchinson may help provide some important context here. So may the Federal Rules of Criminal Procedure.
U.S. attorneys can bring criminal charges against a defendant without securing a grand jury indictment if the charges are misdemeanors (not felonies) or if the defendant waives their right to be charged by a grand jury. In those cases, a U.S. attorney can charge the defendant using an information. This process is used primarily when defendants have entered into a plea deal with the government before they are charged and are willing to waive their right to indictment by grand jury. But Comey didn’t waive his Fifth Amendment right to an indictment. He intends to fight the charges.
The government alleges that a decade ago, Comey caused an FBI employee to transmit classified information to the press. By law, federal prosecutors have five years to charge most federal crimes. But Comey is being charged with violations of the Espionage Act, for which the statute of limitations is 10 years. Government prosecutors cut it close, charging him on Oct. 5, 2026, exactly 10 years to the day after the alleged conduct occurred.
If they hadn’t charged Comey that day, the statute of limitations would have run out. They would have been barred from charging him.
If they hadn’t charged Comey that day, the statute of limitations would have run out. They would have been barred from charging him.
Comey promptly filed a motion to dismiss, arguing that he didn’t consent to being charged by information so the process did not stop the statute of limitations from running out. There’s a technical legal twist here: While the “ordinary” five-year statute of limitations allows charges to be brought by either indictment or information, the 10-year statute of limitations for the Espionage Act only says “indictment.” It does not mention an information. And notably, Supreme Court precedent requires courts to presume differences in language like this are intentional, not meaningless.
Comey’s argument is buttressed by the fact that in a provision creating a similar 10-year statute of limitations for a series of immigration offenses, Congress specified that either an indictment or an information could stop the statute from running out. So it certainly seems like Congress knows how to use the word “information” when it wants to.
Now, the Justice Department faces a drawn-out legal battle over the fine print of the statute of limitations. It’s likely that prosecutors will try to argue that the conspiracy they allege Comey participated in actually extended into 2017, which would lengthen the limitations window. If the judge doesn’t buy these arguments, the case is over. If the judge rules in the DOJ’s favor, it still has to go to a grand jury for an indictment — since Comey didn’t waive his right to a grand jury.
So why didn’t prosecutors go straight to the grand jury in this case? Prosecutors knew all along that the clock was ticking. President Donald Trump’s animus toward Comey is well documented. A grand jury indictment would have made everything much simpler. Unless, of course, prosecutors lacked confidence that they could secure such an indictment.
Historically, federal prosecutors have exercised their discretion by declining to present cases that lack sufficient evidence to obtain and sustain a conviction at trial. Grand juries almost never decline to indict, for one simple reason: Prosecutors control the cases they take to them. There’s no reason to take a case to a grand jury if the evidence isn’t there.
But now there seems to be one. And it has nothing to do with doing justice.
Last week, a grand jury declined to indict Hutchinson, who testified during the House Jan. 6 committee hearings. She suggested that Trump supported the insurrectionists who overran the U.S. Capitol. A District of Columbia grand jury declined to indict her for perjury.
It was a major rebuke for prosecutors — and not for the first time. When prosecutors in the District of Columbia tried to indict a man who allegedly threw a sandwich at an immigration agent, the grand jury told the government no. The U.S. attorney charged him with a misdemeanor to avoid the grand jury, but a trial jury refused to convict. Last February, a grand jury rejected a proposed indictment of six members of Congress who made a video reminding members of the military and intelligence communities that they are obligated to refuse illegal orders. The president was incensed, but presidential anger doesn’t transform legal conduct into a crime. The grand jury rejected the indictment.
Criminal cases are serious matters. They involve the potential to take away someone’s life and liberty. That’s why checks — like the requirement that a grand jury review the evidence before prosecutors charge a crime — exist. The grand jury’s failure to indict Hutchinson suggests that it didn’t believe there was probable cause she had committed a crime, let alone the proof beyond a reasonable doubt prosecutors would have needed to convict at trial. That’s an indictment of the Justice Department, not of the targets it’s pursuing.
No attorney general should permit prosecutors to take cases to the grand jury when the evidence is lacking. And no attorney general should allow prosecutors to skirt the grand jury to charge a defendant when insufficient evidence exists. This isn’t just about Hutchinson and Comey. It’s about whether a president can abuse the power of prosecution against his enemies, turning the process into punishment and forcing people to defend themselves against meritless charges.
The Constitution’s protections here aren’t accidental. They reflect the framers’ understanding that government power, left unchecked, will be abused. The Justice Department’s independence and commitment to following the law and the facts without fear or favor is one of them. An independent Congress is another.
Ultimately, this is a big part of what’s at stake in Tuesday’s election. Voters aren’t deciding whether Jim Comey or Cassidy Hutchinson committed crimes. That’s not their job. But they are deciding who will represent them in Congress, and whether those representatives will insist that the Justice Department stop using the machinery of criminal justice to pursue the president’s political grievances.
Grand jurors — ordinary Americans — have shown themselves willing to stand up to the government and say no. Now the rest of us can similarly demand a Congress that acts with the same fidelity to American principles. The Constitution cannot protect us from an abusive president unless the people entrusted with enforcing its limits are willing to say no. This election is our opportunity to insist on it.
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