Ex-FBI chief James Comey wants a charge thrown out. Will a judge agree this year?

What happened

Lawyers for the former FBI director James Comey will ask a federal judge on Friday to block the US justice department from pursuing its third criminal case against him.

In the US, a criminal indictment must be approved by a grand jury. A grand jury is a group of citizens who decide whether the evidence is strong enough to take someone to court. A prosecutor can also write and file a charge alone, called a criminal information. In Washington, prosecutors used this second way against James Comey, who led the FBI from 2013 until Donald Trump fired him in May 2017.

Court papers made public on 26 October show two charges of leaking defence secrets. They are about a New York Times story from October 2016. The Justice Department said it went around the grand jury to stretch the legal time limit for getting a grand jury charge. Comey’s lawyers say the charge has no legal force. Former prosecutor Glenn Kirschner told the BBC that the 10-year time limit may already have passed.

The same leak was investigated twice before, with no charges. Prosecutor John Durham advised against charges in December 2018, and a second inquiry was closed in early 2020. Comey says he did nothing wrong: “I’m still innocent, I’m still not afraid of these people and I still believe in the independent federal judiciary”. Trump has accused him of treason and wants him in prison. A first case against Comey was thrown out in November 2025, and a second one is still open.

Judge Trevor McFadden, chosen by Trump, was due to hear the request on 30 October. The court’s own list of papers shows the hearing took place and the judge kept the question to decide later, with no date. He had moved fast before: on 9 October he held an urgent hearing the same day and set dates for the written arguments on 16, 23 and 27 October. If he does not end the charge, the case goes on.

Motion Hearing as to JAMES BRIEN COMEY, JR held on 10/30/2026 re 11 MOTION to Dismiss Case. Held under advisement.

US District Court for the District of Columbia, docket of United States v. Comey, 30 October 2026

Sources: The Guardian, BBC, The Independent, US District Court docket

The Pattern

We looked for cases where a US prosecutor filed a charge alone, without a grand jury, before the legal time limit ran out, and the person charged asked a federal judge to throw it out. We found nine such rulings from 1997 to 2023. Judges refused six times and threw out the charge three times. Four of the nine came from one court in southern Florida.

The Read

Judges have mostly kept such charges alive. In six of nine past fights they refused to throw out a charge a prosecutor filed alone, and appeals courts in four US regions sided with the government on the main legal question. In each of the three fights the person charged won, the judge found the government had no good reason for its timing. In 2023 a Florida judge wrote “the pandemic is no excuse”. Time is also short. This question closes on 31 December, 76 days after the request of 16 October, and in the past only three rulings came that fast, all of them refusals.

There are reasons for doubt. Four of the nine fights came from one court in southern Florida, and six of the charges were filed in 2020, when the pandemic stopped grand juries from meeting. Here the Justice Department gave only the time limit as its reason. In eight of the nine, a grand jury charge already existed when the judge ruled, and there is none yet against Comey. Judge McFadden heard the request 14 days after it was filed. If prosecutors get a grand jury charge first, ending the prosecutor’s own charge would not stop the prosecution.

Sources: US Court of Appeals (2, 3, 4), US District Court docket, The Guardian