A federal judge spent nearly two hours on Friday hearing former FBI Director James Comey's request to throw out the latest criminal case against him — the Justice Department's third attempt to prosecute Comey in 13 months — and reserved his decision, leaving the case alive.
Judge Trevor McFadden did not rule, but he sounded open to letting the case move forward, questioning why he should not let a grand jury — the panel of citizens that decides whether a person is formally charged — weigh the evidence; grand jurors, he noted, may ultimately refuse to indict. He did not bar the government from seeking an indictment meanwhile.
The Justice Department said it will do exactly that. Prosecutor Dustin Farahnak said the government is pursuing an indictment from a Washington grand jury, and that new evidence — conduct as recently as April 2017 — could extend its charging window by six months. McFadden warned against any surprise "dawn raid" arrest; Farahnak assured him "that won't happen."
Unsealed on Monday, the case is a two-count "criminal information" — a charge prosecutors file directly, with no grand jury vote and no judge's sign-off — accusing Comey of directing the transmission of national-defense information. Prosecutors allege that in October 2016, as FBI director, Comey directed staff to speak to a New York Times reporter to correct inaccuracies in a Reuters report, illegally transferring classified information. The Times article, published on October 5, 2016, reported that Yahoo scanned users' emails for the government under a secret court order.
Comey's lawyers say the case was filed too late. The information was filed under seal on October 5, 2026 — exactly ten years to the day after the Times article. His attorney Ephraim McDowell argued the ten-year extension in the Internal Security Act applies only to grand-jury indictments, that an information filed without the defendant's waiver cannot stop the clock, and that the government "waited until the last minute." His team notes the same allegations were investigated in President Trump's first term, when prosecutors decided no charges should be brought. The Justice Department answers that the two filings are essentially the same tool. Comey denies the allegations: "I'm still innocent... and I still believe in the independent federal judiciary."
The fight began after President Trump publicly demanded that the Justice Department act "now" against Comey and other perceived foes. In September 2025 Comey was charged with false statements to Congress and obstructing a congressional proceeding, over his denial that he authorized an associate as an anonymous media source. That case was thrown out by Judge Cameron McGowan Currie, who found that the prosecutor, interim U.S. Attorney Lindsey Halligan — a former personal lawyer to the president, installed after her predecessor resigned under pressure — had been unlawfully appointed: the 120-day window for such an appointment had closed the previous May. Everything flowing from her appointment was thrown out with it — the parallel case against New York Attorney General Letitia James too. The dismissal was without prejudice — but the legal deadline on those charges passed at the end of September 2025, and the White House said only that "this will not be the final word."
A second case waits in North Carolina, over a 2025 photograph of seashells arranged as "86 47," which prosecutors say threatened the president's life and Comey says was no threat at all. On Friday its judge barred outside groups from filing friend-of-the-court briefs; the trial is pushed back until 2027.
What McFadden decides will reach well beyond one defendant. If a prosecutor's own filing can pause a legal deadline, the government gains a tool for reviving old leak cases a grand jury never charged in time; if it cannot, this case dies the way the first one did. The ruling runs against a hard clock: McFadden may not decide by next Thursday, effectively the last day to seek an indictment before the filing is dismissed under the Speedy Trial Act. For ordinary Americans watching a president openly demand prosecutions of his critics, the Comey cases have become the working test of where that demand stops — at the courthouse door, or only when a judge says so.
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