The newest federal case against former FBI Director James Comey began with a criminal information, a charge prosecutors can file on their own, rather than an indictment voted by a grand jury. His lawyers say that choice means the case was filed too late.
The two-count case, unsealed Monday, October 26, accuses Comey of Espionage Act violations tied to an alleged disclosure to a reporter on October 5, 2016, while he led the FBI, Law Commentary reported. Prosecutors filed it under seal on October 5, 2026, exactly 10 years later. Comey denies wrongdoing. "Nothing's changed with me. I'm still innocent," he said in a video posted Monday. Our news report on the charges is James Comey Charged a Third Time. This explainer covers the procedure, not the merits.
Two ways to bring federal charges
Federal prosecutors can start a felony case in two ways. An indictment is a formal charge returned by a grand jury, a panel of citizens that hears the government's evidence in secret and decides whether there is probable cause. We explained how those panels work in What a Grand Jury Does, and Why It Meets Behind Closed Doors.
An information is a charging document signed by a prosecutor alone. It needs no grand jury vote and no judge's finding of probable cause, Time noted.
The Fifth Amendment guarantees a grand jury for serious federal crimes, and the rules carry that through. Federal Rule of Criminal Procedure 7 says an offense punishable by more than a year in prison "must be prosecuted by an indictment." It may go forward by information only if the defendant, "in open court and after being advised of the nature of the charge and of the defendant's rights," waives the right to an indictment. Defendants often waive when they have already agreed to plead guilty. Comey has not agreed to anything.
Why the government filed one anyway
The answer is the clock. Most federal crimes carry a five-year deadline under 18 U.S.C. 3282, which bars prosecution "unless the indictment is found or the information is instituted within five years." Prosecutors say a 10-year limit applies to these charges. Either way, the statute treats an information as one way to meet a deadline.
The government's position is that filing the information stopped the clock while it seeks an indictment. Law Commentary reported that the Justice Department told the court federal appeals courts have allowed informations to suspend the limitations period in that way. As of Monday, prosecutors had not obtained an indictment, Time reported.
Comey's lawyers have asked the court to dismiss the case. They argue the government needed a grand jury indictment, not an information, before the deadline passed. Rule 7's waiver requirement is the backdrop to that argument: without a waiver, an information alone cannot carry a felony case to trial. They also note the alleged leak was investigated twice during President Trump's first term, in 2017 and 2019, without charges. U.S. District Judge Trevor McFadden authorized the unsealing and will rule on the motion, according to Law Commentary.
The six-month safety valve
There is a wrinkle. Under 18 U.S.C. 3288, when a felony indictment or information "is dismissed for any reason" after the deadline has passed, prosecutors generally get six months to return a new indictment. But the law does not allow refiling when the dismissal was because the original charge itself was untimely. So the core question for the judge is whether an information filed without a waiver was a timely charge at all.
Analysis: the timeline in numbers
October 5, 2016: Alleged disclosure, per the charging document.
October 5, 2021: When a five-year default deadline would have expired.
October 5, 2026: End of the 10-year period prosecutors say applies, information filed under seal.
October 26, 2026: Filing unsealed.
Six months after any dismissal: Window for a new indictment under section 3288, if it applies.
By the newsroom's count, the government filed with no days to spare. If the judge finds the information did not stop the clock, there is no later filing date that could be on time, and section 3288's safety valve would likely be closed because the problem would be timeliness itself.
The wider picture
This is the third criminal case against Comey since 2025. A September 2025 indictment on false statement and obstruction charges was dismissed after a judge ruled the prosecutor who brought it had been unlawfully appointed, the department has appealed. A separate April 2026 indictment in North Carolina, over an Instagram post the government calls a threat, is set for trial in February 2027, Time reported. Comey denies wrongdoing in each.
Charging paperwork is under scrutiny in Washington this week beyond Comey: a magistrate judge on Tuesday struck an unsigned complaint against two former FBI officials, as we reported in Judge Strikes Unsigned New Charges Against Two Ex-FBI Officials. If a grand jury does indict, Comey would be arraigned on the new charges and enter a plea, the step we walked through in What Happens at an Arraignment. For more on why deadlines exist at all, see Statutes of Limitations, Why Some Crimes Expire and Murder Does Not.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
