Judge cautions Justice Department against aggressive action in Comey case

U.S. District Judge Trevor McFadden told the Justice Department on Friday that he would be "extremely frustrated" if law-enforcement agents conducted a predawn raid or used "black pajamas" at former FBI Director James Comey’s residence. The warning came as the court examined a third criminal information filed against Comey, alleging two offenses dating to 2016.

Prosecutor Dustin Farahnak responded that the government would not take actions that would offend the court. Comey’s attorneys argue the case is invalid because the government did not obtain a grand-jury indictment before the ten-year statute of limitations expired.

The latest filing alleges that, while serving as FBI director in October 2016, Comey authorized staff to speak with a New York Times reporter to correct the record on a separate report involving classified information. The information was filed under seal on Oct. 5, exactly ten years after the related Times story, and was not the result of a grand-jury indictment or a criminal complaint signed by a judge.

McFadden did not bar the government from seeking a grand-jury indictment, noting that the decision rests with prosecutors. He remarked that if a grand jury declines to indict, the proceedings would be futile, adding a light-hearted comment that “ham sandwiches are harder to indict these days.”

Legal analysts, including former federal prosecutor Sarah Krissoff, criticized the charging mechanism, saying the government should have presented a complaint to a judge or a grand jury. Krissoff described the Department of Justice’s handling as “disturbing” and suggested the case is unlikely to proceed.

The judge ordered the case unsealed and scheduled a hearing on Comey’s motion to dismiss. The hearing follows a week in which federal grand juries rejected other politically sensitive cases, including one involving former Jan. 6 committee witness Cassidy Hutchinson.