How the Trump DOJ can lose the new Comey case before it even starts

As is true of the first two criminal cases the Trump Justice Department brought against James Comey in Virginia and North Carolina , the third set of charges, made public this week in Washington, D.C., presents multiple legal issues.

A potentially fatal threshold issue is that federal prosecutors may have blown a key deadline — indeed, the key deadline, one that could kill the latest case against the former FBI director before it even gets going.

The Washington charges, stemming from allegations of unlawfully sharing sensitive government information with a journalist, have a 10-year statute of limitations. That means prosecutors must bring them within a decade of the alleged offense.

The DOJ apparently brought the case just in time to make the 10-year window for alleged criminal conduct from 2016. But regardless of the allegations' validity on their merits (which a jury could decide down the road, if it gets that far), a more pressing issue is the type of legal instrument that prosecutors used to bring these charges. They used an information , which doesn't require grand jury approval, as opposed to an indictment, which does. The reason that's a possibly fatal problem is that the law for these charges says they must be brought within 10 years by "indictment," without mentioning "information" as an option.

Comey's lawyers made that point in a pending motion to dismiss . They noted that Congress has referenced both informations and indictments in other laws; therefore, the defense argued, lawmakers know how to specify the difference but chose to require an indictment here. The defense asked the judge to "enforce the text that Congress wrote and dismiss the information as time barred."

Opposing the dismissal motion, the DOJ argued that it's both premature and that the difference between informations and indictments isn't as big a deal here as Comey claims. Prosecutors cited the general five-year statute of limitations law , which references both indictments and informations; from that, they argued that the 10-year law for Comey's charges, which mentions indictments but not informations, is really only about extending the limitations period, not about the form those charges must take.

The bottom line is that if Comey is correct, then the DOJ's failure to obtain an indictment within the 10-year period is not a mere technical foot fault — it's the end of the case before it begins. This latest case, therefore, starts with a crucial court battle over whether it's a case at all.

It's a battle that the DOJ could have avoided by securing an indictment. We don't know why it didn't do so. We do know, generally, that it has had trouble securing approval of charges from citizens called to grand jury service in President Donald Trump's second term in some of the administration's most political cases in the nation's capital.

At any rate, this felony case won't proceed toward trial without prosecutors first securing an indictment. That grand jury process is required unless a defendant waives their right to it, which we have no reason to expect here. So even if prosecutors win this threshold battle and succeed in stopping the clock with their placeholder information, they still need to clear that grand jury hurdle.

If they do so, then that would only put prosecutors in a position to face the more standard pretrial motions to dismiss before the case can make it to trial. I say "more" standard because a notable feature of litigation in Trump's second term has been defendants raising claims that they have been vindictively or selectively prosecuted by this revenge-fueled administration.

As with grand jury refusals to approve indictments, even potentially successful motions along those lines had been rare. Yet they have been raised in a series of high-profile cases in Trump's second term, including in Comey's other cases. If this latest one proceeds, then we should expect him to make such a motion here, too. We should also expect it to be taken seriously in this third attempt to prosecute the Trump target with criminal charges that were lodged on the eve of a 10-year deadline — charges which, Comey's lawyers observed in their pending motion to dismiss, previous prosecutors refused to bring.

And that's before even getting to a potential trial, where the government would have the burden to prove its case beyond a reasonable doubt . In the factual background section of the DOJ's pending opposition motion, it said the government "uncovered evidence" that, when Comey was FBI director during Trump's first term (before Trump fired him in 2017), he told his staff to share information with a New York Times reporter to "correct misinformation" from another outlet's reporting about email surveillance.

Like all defendants, Comey is presumed innocent until proven otherwise.

His Virginia charges, which related to his congressional testimony in 2020, were dismissed pretrial last year , because a judge found the Trump-backed lawyer overseeing the case, Lindsey Halligan, was unlawfully appointed. The DOJ is appealing .

Meanwhile, the judge in North Carolina is considering Comey's pretrial motions to dismiss that case, which stems from his posting a photo of seashells on Instagram that the government argued amounted to a criminal threat against the president.

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