WASHINGTON — Lawyers for former FBI Director James Comey will ask a federal judge on Friday to block the Justice Department from pursuing its third criminal case against the outspoken critic of President Donald Trump and frequent target of Republican outrage.
Court documents unsealed Monday showed that the Trump administration this month bypassed a grand jury and filed a charging document known as a “criminal information” over allegations of a decade-old and previously investigated news media leak. The Justice Department defended the maneuver as an effort to extend the legal time limit for seeking a grand jury indictment, but Comey’s lawyers have called the case legally invalid.
U.S. District Judge Trevor McFadden, a Trump nominee, was expected to hear arguments on that question Friday.
The effort to prosecute Comey, who says he is innocent of the allegations, is part of a series of politically charged investigative actions the department has undertaken in the run-up to next week’s midterm elections.
Comey was fired by Trump in May 2017 as he oversaw an investigation into whether Trump’s presidential campaign conspired with Russia to tip the 2016 election in his favor over Democrat Hillary Clinton. The two men have been bitterly at odds since, with Comey likening Trump to a corrupt mafia don in a book he published and the president accusing him of treason and calling for his imprisonment.
The first criminal case against Comey, filed in federal court in Virginia, accused him of lying to Congress in 2020 but was dismissed by a judge who concluded that the prosecutor who brought the charges was illegally appointed.
A separate pending indictment charges Comey with threatening Trump through an Instagram photo of seashells in the numerical arrangement of “86 47″ — 86 is slang meaning “to throw out,” “to get rid of” or “to refuse service to,” and Trump is the 47th president. The former FBI director has sought to dismiss the case.
“Well, they’re back — again,” Comey said in a video statement Monday after the documents were unsealed. “It would almost be funny if it weren’t such an appalling abuse of the Department of Justice — one that we cannot become numb to. Nothing’s changed with me; I’m still innocent, I’m still not afraid of these people — and I still believe in the independent federal judiciary.”
The latest allegation concerns an October 2016 New York Times story related to a secret court order that required Yahoo to scan emails for messages potentially linked to a foreign terrorist organization. The story cited two government officials who spoke on the condition of anonymity about the order from a judge on the Foreign Intelligence Surveillance Court that Yahoo was barred from publicly disclosing.
Federal authorities, including prosecutor John Durham, began investigating the disclosure in early 2017. Durham, who later investigated the FBI’s conduct as it scrutinized potential ties between Russia and Trump’s 2016 presidential campaign, wrote a classified memo in December 2018 recommending no criminal charges against anyone in connection with the disclosure, Comey’s attorneys said in a recent court filing.
In 2019, the U.S. attorney’s office for the District of Columbia opened a second investigation of the same matter under the code name “Tropical Vortex.” But that investigation was closed without any charges filed in early 2020.