Charges Against James Comey Hang in Balance as Judge Warns Trump Administration Against ‘Dawn Raid’ Arrest

The Trump administration’s third criminal case against former FBI Director James Comey rests with Judge Trevor McFadden, who could decide to dismiss the fledgling prosecution this week before a deadline looming on Thursday. Mr. Comey was charged last week with transmission of national defense information and conspiracy to transmit national defense information in connection with a story published in 2016 in The New York Times. Those are accusations that Mr. Comey violated the Espionage Act, the same statute under which Mr. Trump was charged by Special Counsel Jack Smith. The government elected to charge Mr. Comey not through an indictment, but instead with a legal instrument known as an “information.”An information, unlike an indictment, does not require a grand jury to bring criminal charges. The government elected to secure an information in order to get the charges filed within the 10-year statute of limitations. Mr. Comey argues that the information was defective and that the window to charge him has expired. He has asked Judge McFadden to dismiss the case.Judge McFadden, an appointee of Mr. Trump, is operating under something of a time crunch himself. Thursday is the last day for the government to seek a grand jury indictment against Mr. Comey. After that, the criminal information could be dismissed under the Speedy Trial Act. The government, though, told Judge McFadden that it had uncovered evidence in the case dating to April 2017. That could extend the deadline to seek an indictment. One prosecutor, Dustin Farahnak, acknowledged to the judge that “we had a clock problem with a complex, important case.” Judge McFadden expressed some skepticism that the Department of Justice’s case against Mr. Comey could prosper before a grand jury. He quipped, “Turns out ham sandwiches are harder to indict these days,” a reference to Judge Sol Wachter’s 1985 chestnut about the ease with which prosecutors typically secure grand jury indictments. The New York Sun reported last week that grand juries have emerged as obstacles to the Justice Department’s prosecutorial agenda.Judge McFadden told the Justice Department that he would “be extremely frustrated if there is some dawn raid” to arrest Mr. Comey. The government assured him “that won’t happen.” The DOJ defends its strategy so far by declaring in a statement that “filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals.”The Constitution ordains, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” Courts have held that to mean that felony charges must be approved by a grand jury, except when the defendant consents to being charged with an information. Mr. Comey notes in his motion to dismiss the case that he never consented to such a charging arrangement. He claims that “there is no time left on the clock” for this case.Mr. Comey declared his innocence in a video released last week. He reckons that the case against him “would almost be funny if it weren’t such an appalling abuse of the Department of Justice, one that we cannot become numb to.”Mr. Comey is also facing criminal charges in North Carolina. In April, a Tar Heel grand jury charged him with threatening Mr. Trump’s life through a photograph posted to Instagram that featured seashells scattered on a beach in an “86 47” formation. The DOJ alleges that the arrangement is a slang expression of the intention to kill the 47th president, Mr. Trump.Mr. Comey captioned the photograph, “Cool shell formation on my beach walk.” He denies that he intended to incite violence and instead contends that his post is protected by the First Amendment. The Supreme Court, in 2023, held in, Counterman v. Colorado, that, for speech to be prosecuted as a threat, the speaker must have subjectively understood the threatening nature of the statement, and the prosecution must establish the requisite mental state.The former FBI director has bested the Trump administration in court once before. Last year, he was indicted for lying to Congress in 2020 about leaks concerning the investigation into Russian interference in the 2016 election. That case was dismissed when Judge Cameron McGowan Currie found that acting United States Attorney Lindsey Halligan had been unlawfully appointed by Attorney General Pam Bondi. That ruling is under appeal.On Monday, in an address in front of the newly reopened Lincoln Memorial Reflecting Pool that doubled as a closing argument before Tuesday’s midterm elections, President Trump railed against Mr. Comey as a “dirty cop.”

Charges Against James Comey Hang in Balance as Judge Warns Trump Administration Against ‘Dawn Raid’ Arrest

Charges Against James Comey Hang in Balance as Judge Warns Trump Administration Against ‘Dawn Raid’ Arrest

More from the New York Sun

Barring Unexpected Election Day Losses, Schumer Looks Undefeatable as Returning Democratic Leader

Welcome to Washington: The Redistricting Wars Are Just Getting Started

Multiple Counties Plan To Keep DOJ Election Monitors Outside of Polling Places on Tuesday

Democratic Socialists Poised for Major Gains in Congress as ‘Squad’ Set To Expand

Fox News Has Its Weakest Month in 25 Years, Offering a Glimpse of Post-Trump Shockwave

In ‘Waiting for Lefty,’ Class Struggle Remains Unfinished Business

North Korea’s Highly Paid Cyber-Warriors Steal the Billions Needed To Finance Nuclear and Missile Programs

My Prediction — Voters, Not Polls Will Decide This Election

More from the New York Sun

Barring Unexpected Election Day Losses, Schumer Looks Undefeatable as Returning Democratic Leader

Welcome to Washington: The Redistricting Wars Are Just Getting Started

Multiple Counties Plan To Keep DOJ Election Monitors Outside of Polling Places on Tuesday

Democratic Socialists Poised for Major Gains in Congress as ‘Squad’ Set To Expand

Fox News Has Its Weakest Month in 25 Years, Offering a Glimpse of Post-Trump Shockwave

In ‘Waiting for Lefty,’ Class Struggle Remains Unfinished Business

North Korea’s Highly Paid Cyber-Warriors Steal the Billions Needed To Finance Nuclear and Missile Programs

My Prediction — Voters, Not Polls Will Decide This Election