Prosecutors say Comey sought to correct Reuters misinformation

Criminal information was filed under seal on Oct. 6, 2016

Prosecutors said investigators found evidence that James Comey “sought to correct misinformation which had appeared in the press by way of Reuters the day before” the New York Times story, directed his staff to speak with a journalist about accuracy concerns and “and thereby illegally transferred classified information.” The Justice Department filed the criminal information under seal on Oct. 6, 2016, 10 years after the story was published.

The case concerns an October 2016 New York Times story about a secret court order requiring Yahoo to scan emails for messages potentially linked to a foreign terrorist organization. The story cited two government officials who spoke on condition of anonymity about the order from a judge on the Foreign Intelligence Surveillance Court. Yahoo was barred from publicly disclosing the order.

The Justice Department said it filed a criminal information to extend the statute of limitations for when it could permissibly bring an indictment. A department spokesperson said, “Filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals. This is an ongoing criminal investigation, and we will not comment further.” According to the report, an information can be filed without a judge’s approval or a grand jury’s finding of probable cause.

Comey’s lawyers say the filing is invalid and barred by the 10-year statute of limitations. They said “the applicable statute of limitations explicitly demands an indictment within 10 years of the offense; an information does not suffice.” They have asked a judge to dismiss the information, and the request remains pending.

Federal authorities, including prosecutor John Durham, began investigating the disclosure in early 2017. Durham later investigated the FBI’s conduct as it scrutinized potential ties between Russia and Trump’s 2016 presidential campaign. In a classified December 2018 memo, he recommended that no criminal charges be brought against anyone connected to the disclosure, Comey’s attorneys said in a recent court filing. In January 2019, the U.S. Attorney’s office for the District of Columbia opened a second investigation under the code name “Tropical Vortex.” It closed without charges in February 2020.

Attorney Patrick Fitzgerald said the Justice Department’s action was the third attempt in little more than one year to charge Comey with a federal crime and that Comey maintained his innocence. He said, “Both times the Government determined that no charges should be brought against anyone.” He said the information had not been approved by a judge or issued by a grand jury and “purports to charge Mr. Comey with crimes that he did not commit.”

Comey responded in a video statement Monday. “Well, they’re back — again,” he said. “It would almost be funny if it weren’t such an appalling abuse of the Department of Justice – one that we cannot become numb to. Nothing’s changed with me; I’m still innocent, I’m still not afraid of these people — and I still believe in an independent federal judiciary.”

The first criminal case against Comey, filed in federal court in Virginia, accused him of lying to Congress in 2020. A judge dismissed the case after concluding that the prosecutor who brought the charges was illegally appointed. A separate pending indictment charges the former FBI director with threatening Trump through an Instagram photo of seashells in the numerical arrangement of “86 47.” Comey has sought dismissal, and some legal experts have greeted the case with skepticism.

The Associated Press described those cases as part of a “Trump retribution campaign” that had extended to Comey’s daughter, Maurene. She was fired from her job as a Justice Department prosecutor in New York last year, and a federal judge ruled Monday that the termination was illegal.

The Associated Press also characterized the newly unsealed prosecution as “an unmistakable escalation” in the administration’s targeting of Comey, a longtime critic and foe of Trump who had faced two other criminal cases since Trump returned to the White House. The report placed the effort within a series of “politically charged investigative actions” undertaken in the run-up to next week’s midterm elections.

Comey was the FBI director when Trump took office in 2017. He had been appointed by then-President Barack Obama, a Democrat, and previously served as a senior Justice Department official under President George W. Bush’s Republican administration. Trump asked Comey at a private dinner to pledge his personal loyalty. The Associated Press said the overture “so unnerved” the FBI director that he documented it in a contemporaneous memorandum.

Trump fired Comey in May 2017 amid an FBI investigation into potential ties between Russia and Trump’s campaign. Special counsel Robert Mueller later took over the inquiry and found that Russia interfered in the 2016 election and that the Trump team welcomed the help, but that there was insufficient evidence to prove a criminal collaboration.

In his 2018 memoir, A Higher Loyalty, Comey likened Trump to a mafia don and described him as “untethered to truth.” Trump has repeatedly claimed that Comey should face charges for “treason” — which Comey dismissed as “dumb lies” — and has called him “an untruthful slime ball.”

Whether the criminal information can toll the statute of limitations remains for a judge. The document’s Oct. 6, 2016 filing date is the point Comey’s lawyers press: they say the statute required an indictment within 10 years and that a criminal information does not suffice. Their request to dismiss remains pending.