WASHINGTON — U.S. District Judge Trevor McFadden on Friday warned the Justice Department to take enforcement action against former FBI Director James Comey after the Trump administration filed a third criminal case against the longtime Trump target using a rare charging mechanism.
“I would be extremely frustrated if there was some sort of pre-dawn raid or black pajamas” outside Comey’s house, McFadden said.
The federal prosecutor in the case, Dustin Farahnak, tried to allay her concerns.
“We are not going to do anything that will offend the court,” he said.
Comey’s attorney, Ephraim McDowell, said the FBI was outside his client’s home. The former director who has long been a target of Donald Trump since the president fired him nearly a decade ago, faces a case involving two alleged crimes dating back to 2016. His lawyers say there is no valid evidence against him: The government did not obtain a grand jury indictment before the 10-year statute of limitations expired.
The latest case involves the allegation that Comey, while FBI director in October 2016, allowed his team to speak to a New York Times reporter to correct information about another report dealing with classified information.
The case was sealed on October 5, exactly 10 years after the publication of a story in the Times detailing how Yahoo complied with a secret foreign intelligence surveillance court order that led to the systematic analysis of email traffic of users of its email service.
This was not the result of a grand jury indictment or criminal complaint evaluated by a judge, but rather a criminal information filed directly by the government, without the judge’s approval. Comey’s team believed the government intended to obtain an arrest warrant and execute an after-hours arrest on the Friday before Columbus Day weekend to ensure that Comey remained in jail over a long holiday weekend.
The judge did not prohibit the government from trying to take the most recent case to a federal grand jury, saying it was the government’s choice. D.C. grand jurors have been skeptical of politically tainted cases against Trump’s avowed enemies.
Earlier this week, the Trump administration failed to secure an indictment against Cassidy Hutchinson, who was a star witness for the January 6 committee. The Trump administration also failed to indict six sitting members of Congress earlier this year over a social media video disfavored by Trump.
Comey’s lawyers had asked the judge to dismiss the case entirely. If the grand jury rejects a complaint against Comey, he said, the government could continue to try to seek an indictment. “All this time, Mr. Comey would be sitting here.”
Referring to the series of no bills, McFadden said grand juries can do surprising things, but if the grand jury refused to indict him, all of these proceedings would have been an exercise in futility.
“Ham sandwiches are harder to blame these days,” McFadden joked, drawing laughter from the courtroom.
It was the third case against Comey since September 2025, when a Trump-aligned lawyer convinced a federal grand jury to return an indictment against the former FBI director in the Eastern District of Virginia. That case was later dropped because attorney Lindsey Halligan acted illegally as a federal prosecutor.
Then came the seashell case: A federal grand jury in the Eastern District of North Carolina indicted Comey over an Instagram photo he posted with seashells arranged to spell “8647,” which prosecutors said constituted a threat against the president. Comey’s team decided to dismiss the case for several reasons and says the image was clearly not intended as a threat. The term “86” is widely known in the restaurant world to mean that the kitchen is out of a dish. A federal judge has yet to rule and has pushed the trial back to 2027.
Legal experts have questioned the mechanism government prosecutors used to bring the most recent case.
“They brought the case in a way that undermines their complaint in the first place,” said former federal prosecutor Sarah Krissoff. “If they had a case, they would have had to put the charges in a complaint and have a judge sign it, or they could have presented it to a grand jury. »
She called the Justice Department’s handling of the situation “troubling.”
“Someone is dictating this process by saying, ‘Bring the case,’” Krissoff said. “The case will go nowhere.”
McFadden ordered the case unsealed Monday and set a hearing for Friday on Comey’s motion to dismiss.
Comey’s hearing came at the end of a week of political cases in federal court in Washington, where a federal grand jury dismissed Hutchinson’s case. Separately, a federal magistrate judge held hearings for several days to examine the validity of charges in a criminal complaint against two former FBI employees who were targeted by Trump’s allies at the Capitol.
“We have grand juries that hold firmly to the rule of law and most likely ask questions and demand that real evidence be presented to them,” Krissoff said. “As a citizen, I sit here and say, ‘Thank God there is the federal justice system,’ because, in my opinion, it is what holds our country together.
Farahnak, is a special U.S. attorney working under Acting Assistant Attorney General Trent McCotter and Deputy Assistant Attorney General Aakash Singh, both Trump appointees. The U.S. Attorney’s Office for the District of Columbia, led by Jeanine Pirro, is not involved in the latest prosecution of Comey.
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