The federal judge overseeing the new case against former FBI Director James Comey is now set to decide whether placeholder charges can survive as prosecutors attempt to get an indictment from a Washington, DC, grand jury.
During a hearing Friday, the Justice Department said it is working on obtaining a grand jury indictment and have gathered additional evidence in the case regarding alledged leaks to the media, even though two previous DOJ investigations had not resulted in charges.
The charges against Comey — for allegedly conspiring to share sensitive information with a media outlet in 2016 to correct reporting from another news outlet — were brought in early October through what is known as an information, meaning that no judge or grand jury approved of the charges and it cannot be used to bring the case forward.
But DOJ attorneys told the court they are considering trying to charge Comey with alleged crimes that occurred after October, 2016 — including through April 2017— which would extend the current statute-of-limitations issue the current charges face.
There is a 10-year deadline on bringing charges under the Espionage Act.
Prosecutors claimed Friday they received new information since the investigation of the same alleged crime by John Durham, the Connecticut US attorney who declined to bring charges in 2018. The attorneys, however, did not say whether the new information came after a second investigation of the alleged leak that was done later in the first Trump administration and also didn’t result in charges.
Attorneys for Comey told district Judge Trevor McFadden that the underlying law does not allow for a charge to be brought by information in order, as the Justice Department has stated as their purpose, to pause the statute of limitations deadline.
Throughout the hearing, McFadden repeatedly asked Comey’s lawyer why he should not wait and let the Justice Department see if it can secure an indictment against Comey through a grand jury.
“FBI agents have been placed outside of Mr. Comey’s home,” the former director’s attorney said, adding the impact the case has already had on Comey and how it is “hanging over” his head.
Attorneys for the Justice Department said that while the law cited to charge Comey does not include charging by “information” within the 10-year limit to bring a charge, the use of the term “indictment” should be understood more broadly as a charging act and not merely as a grand jury return of charges.
“There is at least one novel issue,” McFadden said of the case during the end of Friday’s hearing, adding that it was the Justice Department’s prerogative if they chose to pursue a grand jury indictment before he issued a ruling.
“I will be extremely frustrated if there’s some dawn raid” on Comey’s home, McFadden warned prosecutors, who then promised nothing like that would happen.
Grand juries in Washington, DC, have declined to charge cases repeatedly during the second Trump administration, including earlier this week when a grand jury declined to bring charges against former White House aide Cassidy Hutchinson .
“Ham sandwiches are hard to indict these day,” the judge said.
