Judge Weighs Tossing Comey Case as DOJ Cites New Evidence

A federal judge in Washington declined Friday to immediately throw out the Justice Department’s third criminal case against former FBI Director James Comey, after prosecutors told the court they have uncovered new evidence and are still pursuing a grand jury indictment, according to CBS News.

U.S. District Judge Trevor McFadden, a Trump appointee, declined to issue an immediate ruling on Comey’s motion to dismiss, saying the case turned on very novel issues, according to CBS News. Journalist Roger Parloff, who covered the hearing, wrote on X that McFadden took the motion under advisement after a 90-minute hearing and did not bar the government from seeking an indictment in the meantime.

After a 90-min hearing, Judge McFadden took under advisement James Comey’s motion to dismiss the 10/5 “waiverless information” filed against him in DC. He didn’t bar govt from seeking an indictment meanwhile, but said he’d be “unhappy” if Comey was arrested in a “dawn raid.”
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— Roger Parloff (@rparloff) October 30, 2026

The fight over the clock

The case centers on an alleged 2016 disclosure of national defense information tied to a New York Times article, CBS News reported. Prosecutors filed a criminal information on Oct. 5, the last day before the Espionage Act’s 10-year statute of limitations ran out, according to CBS News and Straight Arrow News. A criminal information does not require grand jury approval, and Comey did not waive his right to a grand jury, Straight Arrow News reported.

Comey attorney Ephraim McDowell told the court that “the criminal information in this case is time-barred and must be dismissed,” according to CBS News. McDowell called the government’s reading of the statutes “a gerrymandered reading,” CBS News reported.

Justice Department attorney Dustin Farahnak countered that the government properly paused the clock by filing the information before the deadline, according to CBS News. He also told the court the ongoing investigation has turned up new evidence of additional “overt acts” by Comey after Oct. 5, 2016, but declined to give details, citing grand jury secrecy, CBS News reported.

“We reached new evidence and we had a clock problem,” Farahnak told the judge, according to CBS News. He said the department is “still going to the grand jury diligently.”

“A ham sandwich is harder to indict”

McFadden questioned whether ruling now made sense when prosecutors could return with an indictment within weeks. “Aren’t we getting a little ahead of ourselves?” he asked, according to CBS News. When McDowell raised the possibility that prosecutors could fail to win an indictment and keep trying, the judge replied, “It turns out a ham sandwich is harder to indict these days,” CBS News reported.

McDowell told the court FBI agents had been stationed outside Comey’s home, according to CBS News. McFadden warned against any surprise arrest, saying, “I will be extremely frustrated if there is a dawn raid … outside of Mr. Comey’s home,” CBS News reported. The judge also noted it was the Justice Department’s prerogative to keep pursuing a grand jury indictment, CBS News reported.

Three cases in just over a year

Friday’s hearing marks the latest chapter in the Justice Department’s efforts to prosecute Comey. A 2025 indictment for allegedly lying to Congress was dismissed after a judge ruled the prosecutor who brought it was unlawfully appointed, according to CBS News and Straight Arrow News. A separate case in North Carolina, over a 2025 Instagram post of seashells spelling “86 47” that prosecutors call a threat against President Donald Trump, remains pending, Straight Arrow News reported.

Comey “steadfastly maintains his innocence,” his legal team said in a statement Monday, according to CBS News. He was not in court Friday.

Sources

• CBS News
• Straight Arrow News
• The Hill
• Roger Parloff on X

Reporting by Daily Beltway.