WASHINGTON — The Justice Department’s latest effort to prosecute former FBI Director James Comey was filed in secret, on the last possible day, and by the department’s own account cannot on its own put him on trial. Court records unsealed on Monday show prosecutors lodged a two-count criminal information against Comey on Oct. 5, under seal, in federal court in Washington — exactly ten years after the alleged offense — in what the department openly describes as a move to stop the statute of limitations expiring.
The filing is the department’s third attempt in little more than a year to charge Comey with a federal crime, and it is an unusual one. An information is a charging document prosecutors can file without a grand jury or a judge’s approval; Comey never waived his right to be indicted, making this a “waiverless” filing. The department concedes it would still need a grand jury indictment to prosecute him, and a department official told CNN the information by itself is “not enforceable.” A spokesperson defended the maneuver as “a widely recognized practice in federal court” that appellate courts have approved for tolling the limitations period.
The three-page information charges Comey with knowingly transmitting national defense information to a person not entitled to receive it, and with conspiring to do so — offenses of the kind covered by the Espionage Act. It names no reporter, no news outlet and no co-conspirators, and it seeks forfeiture.
According to a separate unsealed prosecution filing by Special Assistant U.S. Attorney Dustin Farahnak, prosecutors allege Comey wanted to correct misinformation in an Oct. 4, 2016 Reuters story and directed his staff to speak with New York Times reporter Charlie Savage. The resulting Times story, published Oct. 5, 2016, described a secret Foreign Intelligence Surveillance Court order requiring Yahoo to scan customer emails for material tied to a foreign terrorist organization. Prosecutors characterize the direction to staff as an illegal transfer of classified information. These are allegations, not findings; Comey has not been convicted of anything and is presumed innocent.
Judge Trevor McFadden ordered the case unsealed at Comey’s request, which prosecutors did not oppose, citing the significant public interest in charges against a former FBI director.
Comey answered in a video statement the same day. “Well, they’re back — again,” he said. “I’m still innocent, I’m still not afraid of these people — and I still believe in the independent federal judiciary.” His attorney, Patrick Fitzgerald, said in a statement: “For the third time in little more than one year, the Department of Justice has attempted to charge Mr. Comey with a federal crime. Mr. Comey steadfastly maintains his innocence.”
The allegation itself has been examined twice before without charges. According to Comey’s defense filings, John Durham’s team, which took up the disclosure in early 2017, recommended against charges in a December 2018 memo. A second inquiry by the U.S. Attorney’s office in Washington, code-named “Tropical Vortex,” ran from January 2019 to February 2020 and also closed without charges.
Two earlier cases precede this one. A September 2025 indictment in the Eastern District of Virginia, charging false statements and obstruction tied to Comey’s 2020 congressional testimony, was dismissed that November after a judge ruled the U.S. attorney who brought it, Lindsey Halligan, had been unlawfully appointed. An April 2026 indictment in North Carolina, over a May 2025 Instagram post showing seashells arranged as “86 47” and charged as a threat against President Donald Trump, remains pending; Comey maintains his innocence there too.
What happens next turns on the calendar. McFadden must rule on Comey’s sealed mid-October motion to dismiss; the defense argues the statute demands an indictment within ten years of the offense and that an information does not satisfy it. If the judge agrees, the clock has already run. If the filing survives, prosecutors would still have to persuade a grand jury to indict before any trial. The unsealing lands days after the department charged two former senior FBI officials with lying to Congress, a case Zark News reported on Oct. 24.
Sources: U.S. District Court for the District of Columbia filings unsealed Oct. 26, 2026; Associated Press; NBC News; CNN — Oct. 26, 2026
