Federal judge to hear arguments on Friday over leak case that was twice previously investigated with no action taken
Lawyers for the former FBI director James Comey will ask a federal judge on Friday to block the US justice department from pursuing its third criminal case against him.
Comey is an outspoken critic of Donald Trump, in open feud since the US president fired him from that post early in his first term, and he is a frequent target of Republican outrage.
Defense lawyers and Democrats say a blitz of headline-making actions and cases is no coincidence and reeks of politics — in both the timing and the targets.
Former Secretary of State Hillary Clinton revealed during a podcast discussion on Wednesday that she regretted not confronting former FBI Director James Comey more forcefully ahead of the 2016 presidential election.
"I wish somebody had told me that I needed to take on Jim Comey," Clinton said on "High Stakes" alongside Kara Swisher. "I needed to really challenge his breach of precedent, his breaking the Justice Department's norms of not interfering in elections, his deliberate, reckless effort to curry favor with the Republicans. I wish I had taken it on in a very forcefully, frontal way. And I didn’t."
Comey, while serving as FBI director in 2016, sent a letter to Congress on Oct. 28, 2016 — exactly 10 years ago Wednesday — informing lawmakers that the FBI would review newly discovered emails potentially related to its investigation into Clinton's use of a private email server. Just two days before the 2016 election, on Nov. 6, Comey informed Congress that the review had not changed the FBI's earlier conclusion that criminal charges against Clinton were not warranted.
"Did I want to pick a fight with the director of the FBI? Well, in retrospect, yeah, I did. So, yeah. I wish I had been, you know, really in his face and picked a fight with him in a way," Clinton added.
Swisher agreed and said, "You have to push back."
"I've been the do-right person for way too long when it comes to not fighting back, because you know the old assumptions are gone, and you've got to be much more in the mix and aware of, you know, what the real dangers are and speak up and fight back," Clinton added.
The Justice Department filed criminal information against Comey on Monday over allegations that he willfully communicated national defense information to an unauthorized person in connection with an alleged 2016 disclosure.
Federal prosecutors filed the two-count criminal information in the U.S. District Court for the District of Columbia, alleging Comey communicated national defense information and conspired with others to unlawfully disclose it.
The Justice Department said that the filing was made to preserve the allegations before the statute of limitations expired as an investigation remains ongoing.
Prosecutors allege that on or about Oct. 5, 2016, Comey knowingly and willfully communicated information related to the national defense to a person who was not entitled to receive it.
Comey's attorneys have challenged the filing. They've argued that prosecutors cannot move forward with the case without first obtaining an indictment from a federal grand jury.
Comey denied wrongdoing in an Instagram post Monday, calling the latest action an "appalling abuse of the Department of Justice."
"Nothing's changed with me. I'm still innocent. I'm not afraid of these people. And I still believe in the independent federal judiciary," Comey said.
"To quote Elsa from ‘Frozen’: ‘Let It Go! Let It Go!’," Fox News contributor Joe Concha told Fox News Digital in a statement about Clinton's remarks. "As for Hillary, the way she so carelessly and recklessly, and probably illegally handled highly classified information is something she shouldn’t be revisiting now, as if she was the victim. Even if she took on Comey, that still doesn’t change the fact she never campaigned in Wisconsin. It doesn’t change the fact that she spoke down to more than 70 million Trump voters at the time whom she called deplorable. And it doesn’t change the fact that, without a time machine, she doesn’t get a do-over now."
Fox News Digital reached out to Comey's team for comment.
In another recent episode of "High Stakes," Clinton criticized a video from actor Matthew McConaughey encouraging voters to consider independent candidates.
McConaughey took to social media this month and challenged the long-held notion that voting for an independent candidate is a wasted vote, arguing that just a handful of independent lawmakers could dramatically shift the balance of power in Washington.
"I think it's really unfortunate that somebody who's such a great actor with such a reach … two weeks before a midterm that is aimed at stopping Trump's corruption, impunity and extreme damage to the country, would suggest that any independent candidate is really a better choice," Clinton said.
Together, they have pursued cases against the president’s enemies and protesters and amplified false claims of widespread election fraud, often citing thin evidence.
In some cases, court paperwork bears unmistakable signs of urgency — typos, unorthodox tactics and the signatures of the department’s senior political leadership.
Attorney General Todd Blanche announcing the indictment of L. Louise Lucas, a prominent Virginia Democrat, on drug-trafficking charges last week in Norfolk, Va.
A little more than a year ago, President Donald Trump publicly demanded that Pam Bondi, then the attorney general, find a crime to pin on former FBI Director James Comey. Trump's underlings have repeatedly tried to do that, first charging Comey with lying to Congress and then accusing him of threatening to assassinate the president. But the first indictment was dismissed because Trump had illegally appointed the prosecutor who obtained it, and the second was doomed right out of the gate because it aimed to punish constitutionally protected political speech.
The Justice Department's latest attempt to follow Trump's marching orders was revealed on Monday, when U.S. District Judge Trevor McFadden unsealed a "criminal information" that claims Comey illegally shared classified information with The New York Times on October 5, 2016. In an attempt to meet the statutory deadline for that charge, prosecutors filed it exactly 10 years after the alleged disclosure. But Comey's lawyers argue that federal law required the government to obtain a grand jury indictment within 10 years of the alleged offense, which it failed to do.
Whatever you make of that dispute, the president has made it clear that he wants to imprison Comey, a longtime nemesis because of his role in the "Russiagate hoax" during Trump's first term, and does not much care about exactly how that happens. Justice Department officials, meanwhile, are keen to pursue Trump's personal vendetta by using their prosecutorial powers as an instrument of his revenge.
The new case "would almost be funny if it weren't such an appalling abuse of the Department of Justice," Comey said in an online video on Monday. "I'm still innocent. I'm still not afraid of these people, and I still believe in the independent federal judiciary."
In the New York Timesstory at the center of the case, Charlie Savage and Nicole Perloth reported that Yahoo had adapted "a system intended to scan emails for child pornography" to comply with a Foreign Intelligence Surveillance Court order seeking "messages containing a computer 'signature' tied to the communications of a state-sponsored terrorist organization." Savage and Perloth cited "two government officials who spoke on the condition of anonymity."
Dustin Farahnak, a special U.S. attorney for the District of Columbia, says that story included "first-time disclosures of classified information not intended for the public domain." According to Farahnak, the government has evidence that Comey "directed staff" to discuss "specific accuracy concerns" about a prior Reuters report on the same subject with Savage. In the process of doing that, Farahnak says, those FBI officials "illegally transferred classified information."
Comey's attempt to set the record straight, according to Trump's henchmen, was a felony punishable by up to 10 years in prison under 18 USC 793(d), an Espionage Act provision that applies to an official who "willfully" shares "information relating to the national defense" with an unauthorized recipient when he "has reason to believe" it "could be used to the injury of the United States." Comey also faces a charge of conspiring to violate Section 793, which likewise carries a maximum 10-year sentence.
If Comey's alleged disclosure was such a grave crime, you might wonder, why did it take a decade to charge him? Because two prior investigations of the same incident concluded that criminal charges were not warranted.
Beginning in March 2017, John Durham, the U.S. attorney for the District of Connecticut, looked into the genesis of the Times article. The investigation found that James Baker, then the FBI's general counsel, was one of the anonymous sources. Baker said he had acted under instructions from FBI Chief of Staff James Rybacki, whom he understood to be conveying Comey's wishes. Durham's investigation included interviews, emails, phone records, and consideration of the relevant statutes. In December 2018, Comey's lawyers note, Durham "wrote a classified memorandum outlining the investigation and recommending 'NO prosecution for Baker or anyone else.'"
The following month, the U.S. Attorney's Office for the District of Columbia "opened an investigation into the same subject matter," Comey's lawyers say. That investigation "was closed without any charges in February 2020" after the office "declined to prosecute."
Given the outcomes of those two investigations, the decision to charge Comey now stinks of desperation to slake Trump's thirst for revenge. According to Comey's lawyers, the tardiness of the charges also fatally undermines the case.
Federal law generally requires that prosecutors file charges within five years of the alleged crime. But the Internal Security Act of 1950 made an exception for Section 793, saying "an indictment for any violation" of that provision "may be found at any time within ten years next after such violation shall have been committed."
The charges against Comey "should be dismissed as time barred," his lawyers argue: "Section 19 of the Internal Security Act gives the government an extended ten-year limitations period in which to charge Section 793 offenses. But as Section 19 unambiguously states, the government may invoke that extended period only by obtaining a grand jury indictment. A criminal information—which the government can issue unilaterally without grand jury involvement—does not suffice. Because the default five-year statute of limitations for federal felonies has long since elapsed on the alleged offenses, and the government's information does not meet the express statutory requirement for an extended ten-year limitations period, the information is untimely and must be dismissed."
Whichever side prevails on that issue, no one should have any illusions that the Justice Department is pursuing the mission suggested by its name. "It remains unclear what [McFadden] will do with the matter and whether DOJ will even be able to secure an indictment—as required by the Constitution," Cato Institute legal fellow Mike Fox says in an emailed press release. "Should the matter proceed, it is unequivocally clear that this case is a vindictive prosecution—a classic case of lawfare by a weaponized Justice Department."
Speaking to reporters on the tarmac before departing for a campaign event in Michigan, JD Vance responded to a question about President Trump’s remarks branding Democratic Senate candidate Abdul El-Sayed as a “jihadist.”
Vance, who has sparred with the progressive El-Sayed repeatedly on the campaign trail, took a somewhat softer tone. But he didn’t walk away from Trump’s remarks.
Lawyers for James B. Comey said the case centered on an issue that had already been investigated and had not led to charges, of a purported leak of national security information to The Times in October 2016.
The Trump administration is attempting to prosecute former FBI Director James Comey for what it calls disclosing classified information, employing the unusual maneuver of bypassing a grand jury.
Ms. Comey, the daughter of James Comey, the former director of the F.B.I., worked for the U.S. attorney’s office in Manhattan, handling the prosecutions of Jeffrey Epstein and Sean Combs.
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