Comey Charged by Information on the Last Day of a Ten-Year Clock, With No Grand Jury Indictment

The Justice Department’s new case against James Comey, unsealed on Monday 26 October, is a two-count criminal information filed on 5 October, exactly ten years after the leak it alleges, and no grand jury has indicted him on it. Whether that document stopped the clock is now the case.

The information charges the former FBI director with transmitting national defence information and conspiring to do so, NBC News reported. It was filed under seal in the federal district court in Washington and made public by order of Judge Trevor McFadden. The government says that on or about 5 October 2016 Mr Comey “directed staff to speak to” a newspaper reporter “about specific accuracy concerns” arising from a Reuters article, published the day before, about Yahoo’s cooperation with US surveillance, and in doing so passed on classified information. According to Time, the charging language says he “knowingly and willfully communicated, delivered, transmitted” the information to a person not entitled to receive it. The charging document does not publicly identify the reporter, any alleged co-conspirator or the specific information disclosed, Court Cast reported.

Mr Comey’s lawyers moved to dismiss about ten days before the unsealing. The motion says the charges “are based exclusively on the October 5, 2016, alleged disclosure” and that the government had ten years to bring them “by obtaining a grand jury indictment.” The department answers that filing an information to preserve a charge while it seeks an indictment is a “widely recognized practice in federal court,” endorsed by several courts of appeals, NBC reported. Judge McFadden has not ruled.

What is the difference between an information and an indictment?

An indictment is a charge voted by a grand jury; an information is a charge signed by a prosecutor alone, and for a felony it cannot go to trial unless the defendant agrees. Rule 7 of the Federal Rules of Criminal Procedure says an offence punishable by more than a year in prison “must be prosecuted by an indictment,” and that it “may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant’s rights—waives prosecution by indictment.” Mr Comey has not waived. The information, by itself, cannot take him to trial. (This publication has set out before why the grand jury’s role is a screening device rather than a trial.)

The filing also required no grand jury vote and no judicial finding of probable cause, Time noted. Court Cast reported that the unsealing order records that prosecutors were not seeking Mr Comey’s arrest or appearance at this stage, and that he had offered to surrender voluntarily. NBC reported that Judge McFadden observed that charging documents are usually sealed to help apprehend a defendant.

What does the ten-year statute actually say?

It says “indictment” and nothing else. Most federal crimes run on the general rule in 18 U.S.C. § 3282, which bars prosecution “unless the indictment is found or the information is instituted within five years.” Espionage Act offences get longer. Section 19 of the Act of 23 September 1950, reproduced in the statutory notes to 18 U.S.C. § 792, provides that “an indictment” for violations of sections 792, 793 and 794, other than capital offences, “may be found at any time within ten years next after such violation shall have been committed.” Transmitting national defence information is an offence under section 793.

Set side by side, the wording is the dispute. The table below is this publication’s comparison of the two texts.

The defence reads the gap as decisive: Congress gave the longer period to an indictment, and, in the motion’s words, “courts may not read words or phrases into statutes,” MS NOW reported. The department’s position, as reported, is that an information filed in time suspends the period while it goes to a grand jury. Neither side’s cited cases are public in the reporting this publication could read, and no outlet has reported a court addressing the 1950 wording specifically.

What happens if the information is dismissed?

Probably nothing good for the government, because the usual safety net excludes this situation. 18 U.S.C. § 3288 lets prosecutors return a new indictment within six months after an indictment or information is dismissed “for any reason after the period prescribed by the applicable statute of limitations has expired.” Its last sentence withdraws that grace where “the reason for the dismissal was the failure to file the indictment or information within the period prescribed by the applicable statute of limitations.” If Judge McFadden dismisses on the defence’s theory, that is the reason. On this publication’s reading, the case then has no second door.

If he rules for the department, the government still needs a grand jury in Washington to vote a true bill before Mr Comey can be arraigned, NBC reported. The sequence is unusual, and the order matters: the court is being asked to decide whether the charge is timely before any grand jury has decided whether there should be a charge at all.

Why is this the third case?

Because the first two are in different places and different postures. The table is this publication’s summary from the reporting cited.

The defence says the 2016 contacts were “investigated by two separate U.S. Attorneys over the past ten years” and that “Both declined to prosecute,” MS NOW reported; Time dates those reviews to 2017 and 2019. The department has not publicly answered that point. In a video posted on Monday, Mr Comey said: “Nothing’s changed with me. I’m still innocent.” His lawyer, Patrick Fitzgerald, said Mr Comey “will fight these charges vigorously and in the open.” The same family’s other case, over his daughter’s dismissal as a federal prosecutor, is a separate matter, decided in her favour in Manhattan on the same Monday under civil service law.

The prosecution filed on the last day it believed it had. Whether it had that day depends on two words a 1950 Congress did not write.