Over the last month, a legal fight has been playing out behind closed doors about the Department of Justice’s ongoing investigation into former FBI Director James Comey over the alleged mishandling of classified information dating back more than a decade ago.
According to newly unsealed court records, prosecutors allege that Comey broke the law by directing FBI staff to leak information to a New York Times reporter for an article published on Oct. 5, 2016, titled “Yahoo Said to Have Aided U.S. Email Surveillance by Adapting Spam Filter.”
“The United States' investigation has uncovered evidence that former FBI Director, James B. Comey, sought to correct misinformation which had appeared in the press by way of Reuters the day before,” prosecutors wrote in their response to Comey’s motion to dismiss earlier this month. “Mr. Comey directed staff to speak to [the New York Times reporter] about specific accuracy concerns related to the Reuters article, and thereby illegally transferred classified information.”
The article in question centered on whether the Department of Justice sought a court order from the Foreign Intelligence Surveillance Court to force Yahoo to search for communications between members of a foreign terrorist organization. According to court filings, Comey sought to correct claims in a Reuters story published the previous day that Yahoo “secretly built a custom software program to search all of its customers' incoming emails for specific information provided by U.S. intelligence officials.”
Prosecutors with the Department of Justice filed the charges against Comey via what's known as a “criminal information,” which does not require the approval of a grand jury. It was filed under seal on Oct. 5.
Department of Justice lawyers argue that by filing a criminal information within 10 years of the alleged crime, they stopped the clock on the statute of limitations and secured a months-long extension to secure an indictment.
“The Department filed a waiverless criminal information to toll the statute of limitations as it relates to allegations concerning former FBI Director Comey. Filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals. This is an ongoing criminal investigation, and we will not comment further,” a Department of Justice account said on social media.
However, Comey’s lawyers argue that the statute of limitations to bring a criminal information actually expired five years agoc and the rule prosecutors cited to secure an extension only applies to indictments. They also argued that the Washington, D.C., Circuit Court has not approved the practice of tolling the statute of limitations via a criminal information.
“Because the default five-year statute of limitations for federal felonies has long since elapsed on the alleged offenses, and the government's information does not meet the express statutory requirement for an extended ten-year limitations period, the information is untimely and must be dismissed,” Comey’s lawyers wrote in their motion to dismiss.
Prosecutors pushed back on that argument, claiming that the federal law in question applies to both indictments and informations and arguing that “the case comes down to a syllogism" in federal law.
“Given the seriousness of espionage offenses, and given the deficiencies of the prior statute-of-limitations period in capturing treasonous conduct threatening this nation, Congress intended to lengthen the time to prosecute acts of espionage – not to split that time by instrument,” prosecutors wrote.
Comey also faces federal charges of threatening Trump after a federal grand jury indicted Comey on two charges in April after he posted a picture on his Instagram account of seashells spelling out "8647," which federal prosecutors say constituted a threat against the president's life.
Comey's lawyers are seeking to have that case thrown out. His defense lawyers argued that Trump's repeated calls for Comey's prosecution and criticism of his public statement "leave no doubt as to his genuine animus" and demonstrate that the case against him for allegedly threatening to kill Trump by posting photos of seashells on a beach is vindictive.
"The ensuing indictment is not based on a good faith application of the law to the facts; instead, it effectuates a yearslong campaign by the President to use the criminal process to punish Mr. Comey for his protected speech and because of the President's deep-seated animosity," Comey's lawyers wrote.
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