Judge hears arguments over James Comey’s request to throw out latest DOJ allegations against him

A federal judge on Friday did not immediately rule on a request from attorneys for former FBI Director James Comey to throw out criminal allegations put forward by the Justice Department accusing him of allegedly mishandling classified information more than a decade ago. 

It’s the third known effort by federal prosecutors to attempt to bring charges against Comey in the span of 13 months, after President Donald Trump issued a public demand for the Justice Department to act “now” to bring prosecutions against Comey and other perceived political foes.

U.S. District Judge Trevor McFadden heard arguments for nearly two hours over whether the government improperly sought to extend the statute of limitations so they could charge Comey by filing a “criminal information” rather than an indictment, which requires sign-off from a grand jury. 

At one point in the arguments, the judge addressed the Justice Department’s recent difficulties in convincing grand juries to approve charges in a growing number of cases, despite that previously being extraordinarily rare. 

“Turns out ham sandwiches are harder to indict these days,” Judge McFadden said, referring to New York Judge Sol Wachtler’s famous 1985 quote regarding how easy indictments are to attain.

It was unclear by the conclusion of the hearing whether McFadden would issue a ruling by next Thursday, which would technically be the last day for the government to seek a grand jury indictment against Comey, until the criminal information is dismissed under the Speedy Trial Act. 

But DOJ attorney Dustin Farahnak said that, as part of the government’s active investigation, it has since uncovered evidence that could be included in the case as recently as April of 2017 — which, if true, would extend the government’s ability to potentially charge Comey for another six months. 

Before concluding the hearing McFadden cautioned to the government, saying he “will be extremely frustrated if there is some dawn raid” to arrest Comey, prompting Farahnak to assure him “that won’t happen.”

Earlier in the hearing, Comey’s attorneys said there have been several recent instances where FBI agents have been parked outside Comey’s home for unexplained reasons, raising the suggestion that he could face arrest at any moment. 

The latest allegations against Comey were revealed Monday after McFadden ordered details of the behind-the-scenes legal fight to be unsealed at the request of Comey’s legal team.

According to 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 the case 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.”

Comey was indicted in North Carolina on April 28 over a controversial Instagram post from last year that prosecutors say was a threat against the president. In the post, Comey shared a picture showing the numbers “86 47” — interpreted to mean “get rid of” Trump — written in seashells on the beach, with the caption, “Cool shell formation on my beach walk.”

Comey removed the post soon after making it, saying, “I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.” His next court appearance in that case is scheduled for January.

The former FBI director was previously indicted in September 2025 on charges of making a false statement and obstruction related to his testimony before the Senate Judiciary Committee in 2020.

Comey pleaded not guilty at his arraignment and the case was ultimately dismissed on the grounds that the Trump-appointed U.S. attorney who brought the case was improperly appointed.

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