Comey and the waiverless information

By David Oscar Markus

DOJ charged James Comey again today. Third time. This one is a two-count information in D.C. alleging he leaked national defense information in October 2016. It was filed under seal on October 5, 2026. No grand jury. No waiver. DOJ says the point is to toll the statute of limitations while it keeps investigating.

Here is the information. Here is Comey’s motion to dismiss. And here is the government’s response.

DOJ defends not going to the grand jury as a “widely recognized practice.” 

During COVID, grand juries in our district stopped meeting. Prosecutors filed waiverless informations to beat the clock, and about ten defendants got caught up in it. I argued one of those cases, United States v. B.G.G. (I wrote about it here.)

In B.G.G., the government filed an information against Dr. Bart Gatz three days before the statute ran. It knew he would not waive indictment. It served him at 6:33 p.m. on the last day. Then it waited. Nearly three years later, it got an indictment.

Judge Middlebrooks rightfully didn’t buy it.  An unconsented information does not toll the statute. The government had admitted the information could not start a prosecution. Its only job was to stop the clock. Big props to the Judge. He got it right.  It was such a powerful order that the government did not appeal it, and instead chose to defend judges who went the other way. And in 2025 the Eleventh Circuit sided with the government in United States v. Webster. Even there, a concurring judge warned about prosecutorial manipulation and pointed to Gatz as the example.

In these cases, there was a pandemic. The grand juries were shut down. Comey’s information was filed in October 2026 when grand juries are available.

Comey also has an argument the pandemic cases didn’t. The five-year statute, § 3282, talks about an information being “instituted.” The ten-year espionage statute does not. It requires an indictment. So the five-year clock ran long ago, and the ten-year one demands a grand jury. The Fifth Amendment requires a grand jury for a felony unless the defendant waives. An information that can’t be prosecuted shouldn’t be able to freeze the clock. And if you can’t get a grand jury to indict in ten years, that tells you something.