DOJ Charged Comey by Information on the Last Day of a 10-Year Clock. Whether That Stops the Clock Is the Case

A two-count criminal information filed under seal in federal court in Washington on October 5 charges former FBI Director James Comey with transmitting national defense information to a person not entitled to receive it, and with conspiring to do so. The charging sheet is a prosecutor's own filing, not a grand jury's vote, and it was filed exactly 10 years after the October 5, 2016 conduct it describes.

What the information alleges

According to reporting by MS NOW, the government alleges that Comey, acting through one or more co-conspirators, directed an unnamed person described as Individual #1 to disclose national defense information to a reporter at a national news publication on October 5, 2016. Comey's defense identifies the publication as The New York Times. ABC News reports the article was published that day under the headline "Yahoo Said to Have Aided U.S. Email Surveillance by Adapting Spam Filter," and that prosecutors say Comey was trying to correct a Reuters story from the day before.

None of the coverage reviewed cites the statute sections charged, and the charging document itself could not be retrieved for this report, so this account runs on secondary reporting plus the court docket listing. CBS News describes the counts as Espionage Act violations. The government has not named the co-conspirators.

The clock, and the word "indictment"

ABC News reports that the default limitations period for federal felonies is five years, and that the extended 10-year period is the one in dispute. The Justice Department argues that filing an information inside the 10 years tolls the clock, that courts of appeals have approved the practice, and that the 10-year law covers informations as well as indictments. A department spokesperson told CBS News the filing was made "to preserve the statute of limitations before it expires."

Comey's lawyers read the same statute the other way. They argue the extended period applies only to indictments, that the default period lapsed five years ago, and that the D.C. Circuit has not approved tolling by information. In a motion to dismiss described by MS NOW, they say courts "may not read words or phrases into statutes." The government's response calls Comey "mistaken" about its authority to proceed by information.

Sealed for three weeks, then opened at Comey's request

The information stayed under seal until Monday, October 26, when McFadden ordered it unsealed at Comey's request; prosecutors did not oppose. CBS News reports that Comey's team had already filed a motion on October 9 arguing the government "filed a faulty information under seal," and that the Justice Department answered that the challenge was premature because no indictment had been returned. McFadden wrote that criminal charges against a former FBI director for conduct in office are "of significant public interest," and noted that Comey offered to self-surrender, according to CBS News. He did not rule on the merits.

Patrick Fitzgerald, Comey's lawyer, said in a statement that Comey "steadfastly maintains his innocence." Comey himself said, "Nothing's changed with me. I'm still innocent." The Justice Department's only on-record comment, as reported, was that it is an ongoing investigation and it would not comment further.

Two earlier looks at the same leak

CBS News reports that Special Counsel John Durham's investigators examined the 2016 Times story, identified two sources including James Baker, and did not recommend prosecution. A second inquiry, code-named Tropic Vortex, was closed in February 2020 without charges. Comey's defense says two separate U.S. attorneys declined to prosecute over the past ten years. Those declinations are the defense's account; the filing's reasons for charging now were not published in the coverage reviewed.

This is Comey's third federal prosecution in about 13 months. The first, a September 2025 Virginia indictment for lying to Congress, was dismissed because Lindsey Halligan, the only prosecutor who signed it, was unlawfully appointed, and the government's appeal is pending. The second, an April 2026 North Carolina indictment over a seashell "86 47" post, is awaiting a ruling on a motion to dismiss for vindictive and selective prosecution, with no plea expected before January. How often prosecutors use an information to stop a 10-year clock in a national defense case is not something the reporting or the filings available establish, so the Comey case cannot be placed against a base rate here.

What happens next

The ruling turns on how the court reads the extended limitations statute, and the briefing on Comey's motion to dismiss is where it will come from. If McFadden accepts the government's reading, the information stands as filed. If he accepts Comey's, the five-year default governs and the counts for a 2016 act are time barred. Separately, the government's 30-day pause on seeking an indictment means a grand jury could still be asked to act, though the coverage reviewed does not say whether prosecutors intend to.