James Comey Charged – Again

James Comey has again been charged with federal crimes – this he is facing two counts of disclosing classified (or “national defense”) information back in 2016.

The criminal information, originally filed under seal on October 5, 2026, is brief and to the point. We’ll break it down.

Count 1: Alleges that James Comey released classified information on October 5, 2016 in violation of 18 USC § 793(d).

Count 2: Alleges that James Comey, on or about October 4, 2016, conspired with “others known and unknown” to release the the aforementioned classified information in violation of 18 USC § 793(d), (g).

The disclosure of national security information stems from this October 5, 2016 article by Charlie Savage at The New York Times: “Yahoo Said to Have Aided U.S. Email Surveillance by Adapting Spam Filter.”

According to prosecutors, the Government’s investigation uncovered that then-FBI Director Comey “directed staff to speak to Mr. Savage” at The New York Times – an illegal transfer of classified information. That article was determined to have contained “first-time disclosures of classified information not intended for the public domain.” It also contained information that was “significantly similar to information contained within an internal government email circulated only hours before the article’s publication.”

Comey’s motivation was to (supposedly) help correct, or at least influence public reaction to, a JP report that alleged Yahoo “secretly built a custom software program to search all of its customers’ incoming emails for specific information provided by U.S. intelligence officials.”

The JP article also disclosed that Yahoo “complied with a classified U.S. government demand, scanning hundreds of millions of Yahoo Mail accounts at the behest of the National Security Agency or FBI.”

The information was relayed to The New York Times in an attempt to play-down that disclosure, and included revelations that Yahoo complied with a court order that required “it to search for messages containing a computer “signature” tied to the communications of a state-sponsored terrorist organization” and that the DOJ had “obtained an individualized order from a judge of the Foreign Intelligence Surveillance Court last year [in 2015].”

Interestingly, as Stephen McIntyre and Walkafyre (on X) have observed, this original leak investigation was assigned to John Durham and the US Postal Inspection Service. Why the assignment to Durham, who was at the time serving as a US Attorney? Because then-FBI General Counsel James Baker was “one of the subjects of the investigation.”

McIntyre would point out in the FBI’s closing documents on this investigation that Baker’s instructions to leak classified information to The New York Times ultimately came from James Comey himself. (Here’s the referenced text and direct shot of the February 25, 2020 closing concurrence… good work, Stephen and Walk.)

“The USPIS Investigation also revealed [James] Baker disclosed USG classified information to the NYT under the belief he was ultimately instructed and authorized to do so by then FBI Director James Comey. For example, during interviews, Baker indicated FBI Chief of Staff James Rybicki instructed him (Baker) to disclose the information to the NYT, and Baker understood Rybicki was conveying this instruction and authorization from Comey.”

Despite the knowledge that Comey authorized and directed the leak, the recommendation was not to prosecute Baker or Comey for this disclosure.

This latest pursuit of James Comey – a long time coming, literally – is not without challenges, all from the Government’s doing. The criminal information (an accusation without an indictment) was filed exactly ten years after the disclosure of classified information. According to Comey’s Motion to Dismiss, the ten-year statute of limitations for Section 793 “is explicitly limited to securing an ‘indictment.’” A criminal information is not an indictment (an indictment, as opposed to an “information”, is presented to and signed by a grand jury) and thus dismissal is warranted.

The United States obviously doesn’t agree with that assessment, and correctly points out that Comey’s reading of the statute would lead to “absurd results”: that the five-year statute of limitations under Section 793 applies to indictments or a criminal information, but the extension of that statute of limitations (which is for another five years) applies only to indictments. In effect, it would “split one limitations period into two.” The reasonable reading of the statute keeps the statute of limitations the same for a criminal information or indictment. And as to the effect of filing the information: it tolls the statute of limitations so that, once the indictment is submitted, there is no limitations issue

Comey’s case is before Judge Trevor McFadden, a Trump appointee, and we’re leaning that he disagrees with Comey’s assessment of the case. In the meantime, it’s up to the Government to convince a DC Grand Jury to sign an indictment against James Comey. That’s not an easy task in DC, where many still consider Comey to be a hero of “The Resistance.”