Yahoo email-scan order links renewed Comey case to 2016 disclosure

Durham memo preceded Tropical Vortex case, which closed without charges

A secret order from a judge on the Foreign Intelligence Surveillance Court required Yahoo to scan emails for messages potentially linked to a foreign terrorist organization. An October 2016 New York Times story about the order cited two government officials who spoke on the condition of anonymity about the judge’s order, which barred Yahoo from publicly disclosing it. The Justice Department’s allegation against James Comey concerns the former FBI director’s Oct. 5, 2016, disclosure to The New York Times.

Newly unsealed court documents made public Monday revealed that the Justice Department filed a criminal information against Comey over what the department calls a decade-old leak of classified information. The department said the filing was intended to extend the 10-year statute of limitations for bringing a case. A 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.” Comey’s lawyers immediately dismissed the move as invalid and outside the legal time limit for when the Justice Department could file a criminal indictment.

AP characterized the closed-door fight as “a clear escalation in the administration’s targeting of Comey,” whom AP described as a longtime critic and foe of President Donald Trump. AP said the prosecution effort was part of a series of politically charged investigative actions undertaken in the run-up to next week’s midterm elections. The filing was Comey’s third federal criminal case since the Republican returned to the White House the prior year.

Federal authorities, including then-Special Counsel John Durham, began investigating the FBI’s Oct. 5, 2016, disclosure to The New York Times in early 2017. Durham wrote a classified memo in December 2018 recommending no criminal charges against anyone in connection with the disclosure, according to Comey’s attorneys in a recent court filing. In January 2019, the U.S. Attorney’s Office for the District of Columbia opened a second investigation of the same matter under the code name “Tropical Vortex.” It closed without any charges in February 2020.

Fitzgerald said both earlier reviews resulted in no charges. “Both times the Government determined that no charges should be brought against anyone,” he said. Fitzgerald said that, ten years after the article was published, the government filed an “Information” against Comey that was not approved by a judge nor issued by a grand jury. The document “purports to charge Mr. Comey with crimes that he did not commit,” Fitzgerald said.

Fitzgerald also said, “For the third time in little more than one year, the Department of Justice has attempted to charge Mr. Comey with a federal crime. Mr. Comey steadfastly maintains his innocence.” A criminal information is typically filed with a defendant’s consent accompanying a plea deal. Comey’s lawyers said they intended to fight the charges as invalid and barred by the statute of limitations.

At issue is whether the Justice Department can toll the 10-year deadline after two investigations ended without charges and whether the criminal information can support a prosecution without a judge’s approval or issuance by a grand jury, according to Comey’s lawyers. The Justice Department says the investigation is ongoing, and Comey maintains his innocence. His lawyers said they will challenge the charges.

The first federal case against Comey was dismissed after a judge found the prosecutor who brought the indictment had been illegally appointed. In a separate case in April, Comey was charged over a social media post depicting seashells on the beach that officials said constituted a threat against the president.

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 in President George W. Bush’s Republican administration. The relationship was strained from the start. At a private dinner, Trump asked Comey to pledge his personal loyalty. Comey resisted and documented the request in a contemporaneous memorandum.

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

In a video statement released after the documents dropped, Comey said, “Well, they’re back — again.” He continued, “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.”