Former FBI Director James Comey is facing yet another criminal prosecution — this time over allegations that he orchestrated the leaking of sensitive national security information to the New York Times a decade ago.
But there's a potentially significant catch here: Comey's attorneys contend that the Department of Justice (DOJ) missed the deadline to bring the charges, and a federal judge will now have to decide whether the case can even move forward.
The two-count criminal case, filed under seal on October 5, was unsealed Monday by U.S. District Judge Trevor McFadden in Washington, D.C., at Comey's request. The DOJ did not oppose making the case public.
BREAKING: James Comey facing indictment in DC for alleged disclosure of classified information. Case goes to Judge McFadden. https://t.co/wfS028gvY5
— Kyle Cheney (@kyledcheney) October 26, 2026
(Note: The unsealed charging document is a criminal information, rather than an indictment — this could have significant legal implications.)
Prosecutors allege that Comey violated the Espionage Act by directing the unauthorized disclosure of national defense information to a reporter in October 2016, while he was serving as FBI director. He's charged with unlawfully transmitting that information and conspiring with others to do so.
According to the DOJ's response to Comey's motion to dismiss, the allegations center on an October 5, 2016, New York Times article concerning Yahoo's cooperation with U.S. intelligence surveillance efforts. Prosecutors contend that information contained in the article was substantially similar to classified material circulated in an internal government email just hours before publication. They allege Comey directed staff to communicate information that ultimately reached the reporter.
Comey denies wrongdoing, and his attorneys point out that the alleged leak was previously investigated — twice — without resulting in charges. Those investigations concluded in 2018 and 2020, according to the defense.
So why might the case be in trouble before it even gets started? It comes down to the calendar — and a distinction between two types of criminal charging documents, as alluded to above. Federal prosecutors generally have five years to bring criminal charges, but Congress established a ten-year deadline for certain national security offenses, including those alleged here. The DOJ filed its charges on October 5, 2026 — exactly ten years after the alleged leak.
The problem, according to Comey's attorneys, is that the law extending the deadline specifically refers to an indictment, which requires a grand jury's approval. Instead, prosecutors filed a criminal information, a charging document that doesn't require grand jury approval.
Comey's lawyers argue that distinction is fatal: Congress gave prosecutors ten years to obtain an indictment, not simply file charges on their own.
The DOJ disagrees, maintaining that the ten-year deadline applies regardless of which charging document prosecutors initially use. It also argues that Comey's challenge is premature because the government hasn't yet obtained an indictment. In other words, both sides agree that the alleged conduct occurred ten years before the charges were filed. They disagree about whether the DOJ did enough to beat the deadline.
There's another wrinkle with this one: Court filings reveal that prosecutors were preparing to seek an indictment on October 9, but agreed to delay that step while Comey's dismissal challenge was pending.
McFadden has not yet ruled on that challenge. His Monday order addressed only whether the case should remain sealed. And in explaining his decision to make the proceedings public, the judge observed that both Comey's alleged conduct and the government's prosecution deserve scrutiny.
For now, the charges remain pending. Whether prosecutors will get the opportunity to prove them could hinge on how McFadden interprets a single word in a statute enacted more than 75 years ago. Stay tuned!
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