James Comey’s lawyers told a D.C. federal judge the Justice Department waited too long to charge him over an alleged 2016 leak, and that the third criminal case against the former FBI director should be dismissed.
At a Friday hearing in federal court in Washington, attorney Ephraim McDowell argued the prosecution is barred by the 10-year statute of limitations and has no place hanging over his client. The Hill reported that U.S. District Judge Trevor McFadden, a Trump appointee, heard the arguments but did not rule from the bench.
The case marks the third time the Department of Justice has moved criminally against Comey since the start of President Trump’s second term. Prosecutors filed two espionage-related charges tied to an alleged Oct. 5, 2016, directive inside the FBI to share classified national defense information with a New York Times reporter.
Comey was not in the courtroom. In a Monday afternoon Substack video, he denied wrongdoing and cast the fight as a test of judicial independence.
"Nothing’s changed with me. I’m still innocent, but I’m still not afraid of these people, and I still believe in the independent judiciary."
Defense counsel framed the new filing as a late strike after years of prior scrutiny. McDowell told the court the government had already had its chance.
"The government has had 10 years."
He pressed the judge to apply the statute as written and throw the matter out as time-barred. McDowell also noted FBI agents had been stationed outside Comey’s home and argued the prosecution should not continue to loom over him.
Prosecutors did not wait for a grand jury indictment before filing. Instead, DOJ attorney Dustin Farahnak acknowledged the government brought the charges by criminal information, a prosecutor-filed charging paper that does not require grand jury approval, to toll the statute of limitations while evidence continues to go before a grand jury.
"We had a clock problem."
That maneuver keeps the case alive on paper while the grand jury process plays out. Farahnak urged Judge McFadden not to dismiss before that process finished. The hearing was the first open proceeding after the matter had been under seal since Monday.
Related reporting has tracked how DOJ tells a judge it may pursue more charges in the broader Comey matters, underscoring that prosecutors are not treating this as a one-count skirmish.
Judge McFadden questioned whether the defense motion came too early. He asked whether the court was jumping ahead of the grand jury work still underway.
"Aren’t we getting a little ahead of ourselves?"
He also warned he would be “extremely frustrated if there’s some kind of dawn raid.” Farahnak answered that was “not going to happen.” Later, the judge quipped that “Ham sandwiches are harder to indict these days,” a nod to how carefully grand juries are now watched in high-profile cases.
This is not DOJ’s first run at Comey. A previous effort in the Eastern District of Virginia, built around alleged false statements in 2020 congressional testimony, fell apart after a federal judge found that interim U.S. attorney Lindsey Halligan had been unlawfully appointed. That collapse left the new D.C. filing as the latest vehicle for accountability claims the government still wants to press.
Comey’s lawyers say two separate U.S. attorneys’ offices earlier examined the 2016 disclosure allegation and declined to charge. The defense is using that history to argue the current case is both stale and selective. DOJ’s public theory remains that Comey directed someone in his office on Oct. 5, 2016, to feed classified information to a Times reporter to correct an earlier Reuters story.
Federal investigators have also kept pressure on the surrounding leak ecosystem. A federal grand jury subpoenaed a former Comey adviser in a classified leak probe, a sign the government is still working the same universe of sources and disclosures.
Monday brought another setback for prosecutors on a different track. Reports said a federal grand jury declined to indict former White House aide Cassidy Hutchinson in connection with her congressional testimony about the Jan. 6, 2021, Capitol attack. That no-bill landed the same day Comey’s new case sat under seal and he posted his video defense.
Separate from the D.C. espionage counts, Comey is fighting a North Carolina case built on a since-deleted social media post. The post showed seashells arranged to read “86 47.” Trump and his allies read the numbers as a threat. Comey has maintained he did not know the figures could be tied to violence and is seeking to have that case tossed as vindictive.
The Justice Department has already told a court that Comey’s seashell post can be read as a threat against the president, locking in a direct clash over whether the message was political theater or something worse.
Family politics have stayed in the frame as well. Coverage of how Maurene Comey claims she was fired as a “thought criminal” has kept the Comey name tied to the administration’s personnel fights even as the former director battles his own dockets.
Critics of the prosecutions call the pattern a pressure campaign from the White House. The court filings and hearing record, though, show a narrower fight: whether a 10-year clock has run, whether a criminal information can properly freeze that clock, and whether a Trump-appointed judge will let a grand jury finish its work before deciding dismissal.
Declassified material from earlier years still shapes how many conservatives read Comey’s record, including files showing the FBI opened a full probe of Trump as a Russian asset within days of Comey’s firing. That history is why a large share of the public wants statutes of limitations argued in open court rather than waived by delay.
McDowell closed his pitch by asking the court to enforce the text Congress wrote, not a flexible government timeline.
"I think you should hold the government to the words Congress wrote."
Judge McFadden left the motion under advisement. No bench ruling. No new indictment announced. The criminal information remains the placeholder while the grand jury keeps receiving evidence.
When former power players face the same charging rules as everyone else, the statute of limitations is not a technicality, it is the line that keeps prosecutions honest, and judges should make the government live on that line.
