Judge to rule on viability of placeholder charges against former FBI Director James Comey

U.S. District Judge Trevor McFadden is set to determine if the placeholder charges filed against former FBI Director James Comey can survive as prosecutors pursue a grand jury indictment in Washington, D.C. During a Friday hearing, Justice Department attorneys said they have gathered additional evidence related to alleged leaks of sensitive information to the media in 2016 and are considering new charges covering conduct through April 2017, which could affect the statute-of-limitations deadline under the Espionage Act.

The original charges, filed in early October as an information, were not approved by a judge or grand jury and therefore cannot be used to move the case forward. Comey’s lawyers argued that the law does not permit the use of an information to pause the statute-of-limitations clock. The Justice Department countered that an indictment can be understood more broadly as any formal charging act, not solely a grand jury return.

McFadden repeatedly asked Comey’s counsel why the court should not simply wait for a grand jury indictment. Comey’s attorney noted that FBI agents have been stationed outside the former director’s home, describing the ongoing legal pressure as “hanging over” him.

The judge warned prosecutors that any “dawn raid” on Comey’s residence would be unacceptable. He also remarked that the case presents “at least one novel issue,” leaving the decision on whether to issue a ruling pending the department’s next steps.