Newsmax’s Napolitano tears apart DOJ’s Comey ploy: 'There’s no precedent'

Judge Andrew Napolitano doubts the Justice Department’s latest case against James Comey will hold up in court. During an appearance on Newsmax, Napolitano sharply criticized the criminal filing, which accuses Comey of unlawfully transmitting national defense information to an unauthorized individual in violation of the Espionage Act. A second count charges Comey with conspiring to commit the same offense.

Comey has denied wrongdoing, and Napolitano believes the case is unlikely to gain traction in court, and calls into question the timing of the filing overall. “It’s too little, and it’s too late,” he said. "They filed this on Oc. 5, 2026; the event occurred on Oct. 5, 2016 — they’ve missed it by one day.”

Napolitano argued that even if prosecutors were able to bring the charges within the statute of limitations, the allegations fall flat as there is seemingly no apparent intent to harm the U.S. government. He also questioned the significance of the information Comey allegedly disclosed, and challenged the legal basis for the DOJ’s efforts to preserve the case before the statute of limitations expired.

“Even if they’re right, even if you count the extra day as part of the statute of limitations, even if they made it by one day, this is hardly the type of crime where the intent was to harm the government of the United States,” he said. “So it’s hardly sedition, and it’s hardly espionage; it’s hardly a national defense secret — what was leaked was what Yahoo was doing to surveil its own customers, that The New York Times required information to correct a report that was in another publication.”

He continued, noting, “Look, they have used this waiverless information — basically a piece of paper signed by a federal prosecutor, without any evidence, without a grand jury, in an effort to stop the running of the statute of limitations. In some parts of the country there is some precedent for that; there’s no precedent for it in Washington D.C.”

Former federal prosecutor Doug Burns shared similar sentiments to Napolitano. “Real simple: in the Constitution, you can’t charge somebody with a felony unless there’s a grand jury indictment,” Burns said. Burns argues the filing is also not surprising considering its history as it relates to President Donald Trump.

“On the merits of the case, I’ll just quote a great philosopher, my dad, which was: if you change the rules, you better be prepared to live by them,” Burns said. “So I’m not going to sit here and forget being lectured about, ‘How serious what Trump did was with classified information, it’s a most serious crime’ — it’s not, okay. Two wrongs don’t make a right, I agree with that. But again, they did change the rules.”