Opinion: There’s Something Missing in Trump’s Attempt to Prosecute James Comey

The filing and its deadline

On Oct. 5, exactly 10 years after the alleged conduct, Justice Department lawyers filed a criminal information under seal. An information is a formal accusation signed by a prosecutor; an indictment includes a grand jury’s finding that probable cause exists.

Informations are often used when defendants plan to plead guilty and waive indictment. Comey has not waived that right, and the Justice Department does not appear to claim it can take him to trial on the information alone. Instead, the government argues the filing kept the case alive so it can seek an indictment later.

Two statutes, different wording

The general federal limitations rule gives prosecutors five years for most charges. It treats a case as timely if an indictment is found or an information is instituted. Courts have allowed an information filed before that deadline to preserve a case, followed by an indictment later, even without a defendant’s waiver.

For certain national defense offenses, however, a special provision gives prosecutors 10 years. Its wording requires an “indictment” within that period and does not mention an information. The Justice Department is relying on that longer period while using a filing method expressly recognized in the general rule.

Why the distinction matters

Congress used both “indictment” and “information” in the general statute, but referred only to an indictment in the special provision. The argument against the Justice Department’s position is that lawmakers knew the terms differed and did not give an information the same effect under the 10-year rule.