Comey asks federal judge to dismiss third Justice Department case, this one under the Espionage Act

James Comey’s lawyers were scheduled to appear before a federal judge in Washington on Friday to ask that the Justice Department’s newest criminal case against the former FBI director be thrown out¹². They argue it was brought too late and in a form the law does not allow for this kind of charge¹². The government says the opposite: that the filing was necessary to keep the case alive before a 10-year time limit ran out¹.

What prosecutors allege

The case is built on the Espionage Act. Prosecutors allege that Comey transmitted national defense information to someone not legally entitled to receive it, in connection with a 2016 New York Times article¹. According to NBC News, the allegation is that Comey, then FBI director, authorized staff to speak to a Times reporter in October 2016 to correct the record about a report involving classified information². Comey’s lawyers place the alleged disclosure on Oct. 5, 2016¹.

The charging document was filed under seal on Oct. 5 of this year, exactly 10 years after the Times story, NBC reported². It is a criminal information, a charging document that prosecutors can file directly. Unlike an indictment, it does not require a grand jury, and unlike a criminal complaint, it does not need a judge to find probable cause¹². U.S. District Judge Trevor McFadden ordered the case unsealed on Monday and scheduled Friday’s hearing on Comey’s motion to dismiss².

The dispute over the deadline

Comey’s lawyers wrote in early October that the information “should be dismissed as time barred,” arguing that it does not meet the statutory requirements for an extended 10-year limitations period¹. They also say two separate U.S. attorneys’ offices examined the alleged disclosure and both declined to bring charges¹. After the filings were unsealed, his team said he “steadfastly maintains his innocence”¹.

The Justice Department responds that the motion is premature because no indictment has been returned, so “there is no indictment to be dismissed”¹. It also argues that the 10-year period applies to the underlying allegations and that an information may, by rule, substitute for an indictment in a felony case¹. After an emergency hearing earlier this month, the department agreed not to seek an indictment for 30 days, according to Comey’s attorneys¹.

Sarah Krissoff, a former federal prosecutor quoted by NBC News, said the way the case was handled “undermines” the government’s own complaint, and called the handling “disturbing”².

Two earlier cases

The new case follows two others. In September 2025, a grand jury in the Eastern District of Virginia indicted Comey on a charge of lying to Congress; a judge later dismissed it because Lindsey Halligan, the prosecutor who oversaw it, had been unlawfully serving¹². This year, a federal grand jury in the Eastern District of North Carolina indicted him over a social media photo of seashells that prosecutors described as a threat against President Trump². Comey’s team says it was not a threat and has asked the court to dismiss that case as selective and vindictive prosecution; the trial has been pushed to 2027 and no ruling has been issued¹².

Comey’s lawyers argue the charges are politically motivated¹. The sources reviewed for this article do not include a response from the Justice Department to that characterization, and the outcome of Friday’s hearing was not known when this article was written.