Washington — Lawyers for former FBI Director James Comey were back in federal court on Friday, arguing that the Justice Department’s latest attempt to prosecute him should be dismissed because the government failed to bring the case in a timely manner.
Prosecutors are seeking to charge Comey for a third time, alleging he violated the Espionage Act by leaking national defense information in connection with a 2016 New York Times article.
Comey has not been formally charged by criminal complaint or indicted by a federal grand jury for violating the Espionage Act. Instead, in a somewhat unusual maneuver, federal prosecutors filed a criminal information earlier this month, which does not require approval by a grand jury or a finding by a magistrate judge that there is probable cause a crime was committed. The Justice Department said it took that step to preserve the government’s case before a 10-year statute of limitations ran out earlier this month.
Comey’s legal team said in a statement on Monday that Comey “steadfastly maintains his innocence.” Comey was not physically present in court on Friday.
Ephraim McDowell, one of Comey’s lawyers, argued to U.S. District Judge Trevor McFadden, who was nominated to the federal bench by President Trump, that “the criminal information in this case is time-barred and must be dismissed.”
“The government acknowledged that it cannot act to prosecute Mr. Comey based on this information,” McDowell said. “The government is wrong and the statute of limitations has run.”
In court filings, Comey’s legal team argued that the information should be dismissed before any indictment is brought because the Justice Department missed the five-year statute of limitations for one potential crime, then waited until the last possible day of a 10-year deadline to file it under a separate statute.
McDowell called the government’s interpretation of the statutes “a gerrymandered reading.”
Comey’s lawyers said in filings earlier this week that the alleged disclosure of classified information — which took place on Oct. 5, 2016 — was investigated by two separate U.S. attorneys’ offices, both of which declined to bring charges.
After an emergency hearing earlier this month, the Justice Department agreed not to seek an indictment for 30 days, Comey’s attorneys wrote in court filings.
Dustin Farahnak, an attorney for the Justice Department based out of Texas, argued that the government properly paused the clock on the statute of limitations by filing the information on Oct. 5 — the last day before the 10-year statute of limitations expired.
Since then, however, Farahnak revealed that the ongoing investigation has uncovered new evidence of additional “overt acts” by Mr. Comey that took place after Oct. 5, 2016. He declined to provide details, citing grand jury secrecy rules.
“We reached new evidence and we had a clock problem,” Farahnak told McFadden, saying it prompted the Justice Department to look “into the law” to see how it could buy itself some time.
He told the court that the DOJ is “still going to the grand jury diligently.”
McFadden at times appeared skeptical about whether it was appropriate for him to rule on the defense’s motion to dismiss the criminal information now, noting that the Justice Department could simply return two weeks later with an indictment.
“Aren’t we getting a little ahead of ourselves?” McFadden asked. The judge declined to issue an immediate ruling, saying the case turned on very novel issues.
McDowell told him that it is unfair and unjust for Comey to have this case hanging over his head when the statute of limitations has already expired, adding that FBI agents have even been stationed outside of Comey’s home.
McDowell said there is also the potential that prosecutors could fail to obtain an indictment and keep trying, to which McFadden responded: “It turns out a ham sandwich is harder to indict these days.”
The judge noted that while it was the DOJ’s prerogative to proceed with seeking a grand jury indictment, he also did not want any surprise arrests.
“I will be extremely frustrated if there is a dawn raid … outside of Mr. Comey’s home,” McFadden said.
This case marks the third time in over a year that the Justice Department has attempted to charge Comey.
In September 2025, he was indicted for lying to Congress. A judge later dismissed the charges on the grounds that the Trump-appointed prosecutor who spearheaded them was unlawfully appointed.
And earlier this year, he was charged with threatening President Trump in a social media post of seashells arranged to say “86 47.”
Comey’s legal team has argued those charges against him are politically motivated, and asked a judge to toss out the threats case on the grounds of selective and vindictive prosecution. The North Carolina judge overseeing that case has not yet ruled on those motions.
