The Comey Case Has A Deadline Problem

The Justice Department has returned to James Comey with another criminal case and a question about whether it brought the correct paperwork before the clock ran out. For an administration so fond of demanding consequences, it has developed quite an interest in extensions.

Newly unsealed documents reveal an effort to prosecute the former FBI director over an alleged leak connected to a 2016 New York Times report. The Associated Press reports that prosecutors filed a criminal information under seal on October 5, ten years after the article appeared.

That term matters. An information can be filed without a grand jury's finding of probable cause. An indictment requires a grand jury's vote. Comey's lawyers say the applicable ten-year deadline specifically required an indictment, not the document the government submitted. They have asked a judge to dismiss the information. That request remains pending.

The Justice Department disputes their position. It says using an information to stop the limitations clock is an established practice approved by multiple federal appeals courts. The existence of that practice is its argument, not a ruling that this particular filing satisfies this particular statute.

So this is not a settled finding that prosecutors missed the deadline. It is a remarkably consequential argument about whether they preserved it. The government has put a file in the doorway and is asking the court to agree that the door never closed.

The underlying allegation concerns a secret court order requiring Yahoo to scan emails for messages potentially linked to a foreign terrorist organisation. Prosecutors allege Comey directed staff to speak with a Times reporter to correct earlier coverage and thereby unlawfully transferred classified information. Comey maintains his innocence. A correction to news coverage is not automatically lawful, and a prosecutor's description of it is not automatically proof of a crime.

This disclosure has already received considerable federal attention. According to Comey's lawyers' court filing, John Durham recommended no charges in December 2018. A second investigation, opened in 2019 under the name Tropical Vortex, closed without charges in February 2020.

Tropical Vortex sounds like a resort cocktail. In this instance, the federal government has come back to the bar years later insisting there must be something prosecutable at the bottom of the glass.

Prior decisions not to charge do not establish that a later prosecution must be invalid. They do make the sequence worth scrutinising: two investigations without charges, a long-standing presidential adversary, and a new filing at the ten-year mark. The administration owes the public a legally sustainable case, not merely another season of the same feud.

Its recent record with Comey supplies a reason to check the procedural details. A separate case alleging that he lied to Congress was dismissed because a judge found the prosecutor had been illegally appointed. That was not an acquittal on the underlying allegation. It was a ruling that the government had failed a rather important preliminary step: having a lawfully appointed prosecutor.

Trump's own response to the latest case combined a professed lack of knowledge with a confident character verdict. He said, “He's a dirty cop, James Comey. But I know nothing about it.”

An admirably compact division of labour: the president supplies the conclusion; the Justice Department supplies the paperwork; the court checks whether either has arrived with what the law actually requires.

Comey's lawyers still have to win their argument. Prosecutors still have to defend theirs. The deadline does not become optional because the defendant has been on the president's list for a long time.