Former FBI Director James Comey Charged in D.C. With Transmitting National Defense Information
ANALYSIS · October 26, 2026
Slug: comey-charged-national-defense-information-dc
James B. Comey, official portrait as FBI Director. Federal Bureau of Investigation photo (public domain, U.S. government work). Source: Wikimedia Commons, from fbi.gov.
Package note: This Analysis is based on the court record in United States v. James Brien Comey, Jr., Case No. 1:26-cr-00229 (TNM), U.S. District Court for the District of Columbia: the criminal information (corrected copy), the government’s motion to seal, Comey’s motion to dismiss, the government’s response and exhibit, and Judge Trevor N. McFadden’s Oct. 26, 2026, unsealing order. DOJ had not posted a press release on justice.gov when this was written. A criminal information is a charge filed by prosecutors without a grand jury vote. It is an accusation, not a finding of guilt, and Comey is presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law.
Primary sources
- Criminal information (corrected copy), ECF No. 1, filed Oct. 5, 2026: https://storage.courtlistener.com/recap/gov.uscourts.dcd.297297/gov.uscourts.dcd.297297.1.0.pdf
- Government’s motion to seal, ECF No. 3: https://storage.courtlistener.com/recap/gov.uscourts.dcd.297297/gov.uscourts.dcd.297297.3.0.pdf
- Comey’s motion to dismiss criminal information, ECF No. 11, filed Oct. 16, 2026: https://storage.courtlistener.com/recap/gov.uscourts.dcd.297297/gov.uscourts.dcd.297297.11.0.pdf
- Government’s response, ECF No. 12, filed Oct. 23, 2026: https://storage.courtlistener.com/recap/gov.uscourts.dcd.297297/gov.uscourts.dcd.297297.12.0.pdf (Exhibit 1: https://storage.courtlistener.com/recap/gov.uscourts.dcd.297297/gov.uscourts.dcd.297297.12.1.pdf)
- Memorandum order unsealing the case, ECF No. 14, signed Oct. 26, 2026: https://storage.courtlistener.com/recap/gov.uscourts.dcd.297297/gov.uscourts.dcd.297297.14.0.pdf
- Docket (CourtListener/RECAP mirror of PACER): https://www.courtlistener.com/docket/75021374/united-states-v-comey/
- Statute: 18 U.S.C. § 793: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section793&num=0&edition=prelim
- Earlier case, E.D.N.C.: DOJ release, April 28, 2026: https://www.justice.gov/opa/pr/federal-grand-jury-indicts-former-fbi-director-james-comey-threats-harm-president-trump
- Earlier case, E.D. Va.: docket, No. 1:25-cr-00272: https://www.courtlistener.com/docket/71459120/united-states-v-comey/
Former FBI Director James Comey is charged in federal court in Washington, D.C., with two counts tied to an alleged disclosure of national defense information on or about Oct. 5, 2016, while he led the FBI. Prosecutors filed the two-count criminal information under seal on Oct. 5, 2026, exactly ten years after the alleged disclosure. Judge Trevor N. McFadden unsealed the case on Oct. 26, 2026, at Comey’s request. The government did not oppose. Comey has asked the court to dismiss the case as time-barred. The motion is pending. His filing says he “maintains his innocence and categorically denies that he violated the law.”
Core Tension
The information is short. It alleges that Comey, “through one and more co-conspirators directed Individual #1 to disclose national defense information to a reporter for a national news publication” on Oct. 5, 2016. It does not identify Individual #1, the reporter, the publication or the information. These are the government’s allegations, and no court has tested them.
The main fight so far is over timing, not the facts. Federal felonies generally carry a five-year statute of limitations. Section 19 of the Internal Security Act of 1950 allows ten years for Section 793 offenses, but its text refers to “an indictment.” Comey’s lawyers argue that an information, which prosecutors can file without a grand jury, does not qualify for the longer period, so the charges are too late. The government responds that the motion is premature and that the ten-year period covers informations too. Judge McFadden’s Oct. 26 order addressed only sealing. It says the court “will address the remaining issues in the dismissal motion in due course.”
What the court record says
| Element | What the record states |
|---|---|
| Court / case | U.S. District Court for the District of Columbia, United States v. James Brien Comey, Jr., No. 1:26-cr-00229 (TNM) |
| Judge | Trevor N. McFadden, U.S. District Judge |
| Charging document | Criminal information (not a grand jury indictment), filed under seal Oct. 5, 2026. The copy now on the docket is marked “Corrected Copy.” The government filed a notice correcting “scrivener’s errors” on Oct. 26 (ECF No. 13). |
| Count One | Willfully communicating, delivering or transmitting information “relating to the national defense” to “a person not entitled to receive it,” on or about Oct. 5, 2016, “in the District of Columbia and elsewhere,” 18 U.S.C. § 793(d) |
| Count Two | Conspiracy with “others known and unknown” to violate § 793(d), from a date “not later than October 4, 2016” up to the filing date, 18 U.S.C. §§ 793(d) and (g) |
| Overt act alleged | On Oct. 5, 2016, Comey “through one and more co-conspirators directed Individual #1 to disclose national defense information to a reporter for a national news publication” |
| Forfeiture | The information includes a notice of forfeiture under 18 U.S.C. § 793(h) and other statutes |
| Maximum penalty | The information does not state one. Under 18 U.S.C. § 793, each count carries up to 10 years in prison, a fine, or both. Comey’s motion also says both counts carry “up to ten years’ imprisonment.” |
| Prosecutors | Signed for R. Trent McCotter, Acting Deputy Attorney General, and Aakash Singh, Associate Deputy Attorney General, by Special Assistant U.S. Attorneys Patrick R. Hopple, Dustin Farahnak and Justin Meckler Silverberg |
| Defense counsel | Jessica N. Carmichael (appearance Oct. 9). The court admitted Patrick J. Fitzgerald, Michael R. Dreeben and Ephraim A. McDowell pro hac vice on Oct. 16. |
| Arrest / appearance | A prosecutor’s Oct. 5 email, filed as an exhibit, says “the United States is not seeking your client’s arrest or appearance at this time.” Comey has offered to self-surrender, according to the unsealing order. |
Why the case was sealed, and why it was unsealed
In its Oct. 5 motion to seal, the government said “[u]nindicted and unnamed co-conspirators appear” in the information and that public notice “would risk compromising ongoing criminal and grand-jury investigations and could endanger cooperating witnesses.” The court granted the motion the same day, letting prosecutors give a copy to Comey’s lawyers.
Comey asked to unseal the case in his Oct. 16 motion to dismiss. The government said in its Oct. 23 response that it “does not oppose” unsealing. In his Oct. 26 order, Judge McFadden wrote that “[c]riminal charges against a former FBI director for his conduct while in office are of significant public interest.” He noted that the government “does not renew its concerns about interference with ongoing investigations.” He ordered the clerk to unseal the case.
The motion to dismiss
Comey’s lawyers filed an emergency motion to dismiss on Oct. 9, and the court held a sealed hearing that afternoon. On Oct. 16 they filed the full motion to dismiss. Its arguments:
- Statute of limitations: The ten-year period in Section 19 of the Internal Security Act applies only to “[a]n indictment,” and Congress elsewhere names informations separately when it means to include them. Under the default five-year period (18 U.S.C. § 3282), the time to charge 2016 conduct has passed.
- Count Two: The conspiracy charge “does not alter the analysis,” because both counts rest on the Oct. 5, 2016, disclosure.
- Prior reviews: The motion says two U.S. attorneys investigated the same disclosure and declined to prosecute: John H. Durham (D. Conn.) in December 2018 and the U.S. Attorney’s Office for D.C. (“Tropic Vortex”) in February 2020. It cites FBI memoranda declassified and published in 2025.
- Grand jury: The motion says that at the Oct. 9 hearing, government counsel said he had planned to go to the grand jury that day but agreed not to seek an indictment for 30 days while the motion is pending. That account cites the hearing transcript, which is not public.
The government’s Oct. 23 response argues that the motion is premature, that an information “may, by rule, take the indictment’s place in a felony case,” and that Congress “did not split” the ten-year period by charging instrument.
Claims check
| Claim | Assessment | Receipt |
|---|---|---|
| Comey is charged with violating 18 U.S.C. § 793(d) and with conspiracy under §§ 793(d) and (g) | Stated in information | ECF No. 1 |
| The charge is a criminal information, not an indictment | Stated in court record | ECF No. 1; ECF No. 14 at 1 |
| The alleged disclosure was on or about Oct. 5, 2016, to “a reporter for a national news publication” | Allegation (not proven) | ECF No. 1, Count Two |
| Comey directed the disclosure “through one and more co-conspirators” | Allegation (not proven) | ECF No. 1, Count Two |
| The publication was the New York Times | Defense filing’s account. The information does not name it. | ECF No. 11 at 2 |
| Each count carries up to 10 years in prison | Stated in statute | 18 U.S.C. § 793(d), (g) |
| The case was filed under seal on Oct. 5, 2026, and unsealed on Oct. 26, 2026 | Stated in court record | ECF Nos. 3, 4, 14; docket |
| Comey moved to dismiss before the case was unsealed | Stated in court record | ECF Nos. 6 (Oct. 9) and 11 (Oct. 16) |
| Prosecutors agreed not to seek an indictment for 30 days | Defense filing’s account of a sealed hearing | ECF No. 11 at 4 |
| DOJ filed the information to preserve the statute of limitations | DOJ spokesperson, as reported by CBS News. Not in the court record. | CBS News, Oct. 26, 2026 |
Comey’s other federal cases
This is the third federal criminal case brought against Comey since September 2025.
- E.D. Va. (2025): A grand jury indicted Comey on Sept. 25, 2025, on charges tied to his 2020 Senate testimony. On Nov. 24, 2025, Senior U.S. District Judge Cameron McGowan Currie ruled that the appointment of Lindsey Halligan as interim U.S. attorney “violated 28 U.S.C. § 546 and the Appointments Clause.” She dismissed the indictment without prejudice. The government appealed to the Fourth Circuit (Nos. 25-4673 and 25-4674). Source: docket, No. 1:25-cr-00272.
- E.D.N.C. (2026): A grand jury indicted Comey on April 28, 2026, on charges of threatening the President, according to a DOJ release. The case, No. 4:26-cr-00016, is before Judge Louise W. Flanagan. Comey’s motions to dismiss, including one for vindictive and selective prosecution, are pending. Source: docket.
Context / what to watch
- Ruling on dismissal: Judge McFadden has not yet ruled on whether an information can use the ten-year limitations period.
- Grand jury: Watch for any indictment in D.C. on the same conduct, and on what counts.
- Unnamed people: The information refers to “others known and unknown” and to “Individual #1.” No one else has been charged in this case.
- DOJ statement: DOJ had not posted a release on justice.gov as of this writing. A spokesperson told CBS News, “this is an ongoing criminal investigation, and we will not comment further.”
- First appearance: No arraignment date appears on the docket yet.
Reviewed and checked against the criminal information, the motion to seal, the motion to dismiss, the government’s response and the Oct. 26 unsealing order · Kelvic Report · 2026-10-26 · for /analysis/comey-charged-national-defense-information-dc