Judge McFadden sets Friday hearing after DOJ files third Comey case

U.S. District Judge Trevor McFadden ordered the unsealing of a new criminal case against former FBI Director James Comey on Friday.

The Justice Department filed a criminal information on October 5, 2026, to charge Comey with two crimes from 2016. This filing occurred precisely ten years after a New York Times report detailed how Yahoo complied with a secret Foreign Intelligence Surveillance Court order to scan email traffic. Prosecutors alleged that Comey authorized his staff to contact a Times reporter in October 2016 to correct the record on that story.

Legal teams argue the government missed the statutory deadline by not securing a grand jury indictment before the ten-year statute of limitations expired. Instead of a judge-evaluated complaint or a grand jury vote, prosecutors used a criminal information, a mechanism that requires no judicial sign-off. Comey’s attorneys asked Judge McFadden to dismiss the case entirely, noting that the government has not yet presented the charges to a grand jury.

During the hearing, Judge McFadden warned federal prosecutor Dustin Farahnak against executing a dramatic arrest. McFadden said he would be “extremely frustrated if there is some sort of predawn raid or black pajamas” at Comey’s home. Farahnak responded that the team was not going to do anything that would offend the court.

Ephraim McDowell, Comey’s attorney, stated that the FBI was outside his client’s home during the proceedings. McDowell noted that if the grand jury rejects the case, the government could return with new attempts, leaving Comey in a state of legal limbo. McFadden acknowledged that grand juries can act unpredictably but suggested that a refusal to indict would render the current proceedings futile. He joked that “ham sandwiches are harder to indict these days.”

This is the third criminal case brought against Comey since September 2025. The first, in the Eastern District of Virginia, was tossed after the prosecuting attorney was found to have been acting unlawfully. The second, in the Eastern District of North Carolina, involves an Instagram photo of seashells spelling “8647,” which prosecutors call a threat. A judge in that case has not yet ruled and has postponed the trial until 2027.

Farahnak serves as a special U.S. attorney under acting Deputy Attorney General Trent McCotter and Associate Deputy Attorney General Aakash Singh. The U.S. Attorney’s Office for the District of Columbia, led by Jeanine Pirro, is not involved in this specific prosecution. The hearing on Comey’s motion to dismiss is set for Friday.