'Obviously a sham': Law professor tears apart DOJ 'cronies' over Comey case

Former FBI Director James Comey is waiting for Donald Trump-appointed Judge Trevor McFadden to decide whether the Justice Department can bring an indictment despite the statute of limitations.

Comey is accused of "leaking" information to a reporter on Oct. 5, 2016. The DOJ says that it is a violation of 18 U.S.C. § 793. Harvard Law School Professor Jack Goldsmith explained the 10-year problem that the DOJ has in a recent Substack post.

Section 19 of the Internal Security Act of 1950 says that “[a]n indictment for any violation of” 18 U.S.C. § 793 “may be found at any time within ten years next after such violation shall have been committed.”

He explained that if the DOJ wanted to bring a Section 793 indictment within the 10-year window, it should have brought the indictment. Instead, they tried an "information" filing, hoping it could be rolled into an indictment without it counting toward the statute of limitations.

So, he explained, the government is trying to use a rule that applies to a different, shorter deadline to save a case filed under a longer deadline. However, the longer deadline has a stricter requirement the government didn’t meet. Goldsmith called the DOJ's understanding of the law "convoluted."

Congress knows the difference between an indictment and an information, as he noted in Section 3282 (andotherstatutes). For most federal crimes, either one can start the 5-year deadline. But for Comey’s alleged espionage offense, Congress gave DOJ 10 years only if it obtained an indictment before Oct. 5, 2026.

"I feel a bit silly making technical legal points when this matter — filed not by the U.S. Attorney or the National Security Division of the Justice Department, but rather by Attorney General Blanche’s cronies — is so obviously a sham," Goldsmith wrote. "It’s hard to fathom what the Attorney General tells himself as he grossly abuses the power of the Department of Justice at the behest of his Article II master."

Andrew C. McCarthy, a Republican and senior fellow at the National Review Institute, penned a column for the conservative outlet explaining that in a normal Justice Department an indictment would come and the judge would dismiss the case while shaming the prosecutors for bringing it to begin with.

"The Trump DOJ, however, is not a normal Justice Department. Its top priorities include exploiting the legal processes with which they’ve been entrusted, not to promote the rule of law, but to punish the president’s political enemies – putting them through the anxiety, expense, and humiliation of criminal investigations even when the absence of a meritorious prosecution is patent," said McCarthy.

Regardless of the ruling, each side is likely to appeal.