Judge Andrew Napolitano tore into the Justice Department’s latest case against former FBI Director James Comey on Tuesday, arguing the charges are on shaky legal ground and arrived “too little” and “too late.”
Napolitano made the remarks during a morning appearance on Newsmax, one day after court documents were unsealed revealing new federal charges against Comey, a longtime rival of President Trump.
The Justice Department filed a two-count criminal information in federal court in Washington, D.C., on Oct. 5, accusing Comey of violating the Espionage Act. Prosecutors allege that Comey, through one or more co-conspirators, directed an unnamed person to disclose national defense information to a New York Times reporter in October 2016, while he was leading the FBI.
The counts include unlawfully transmitting national defense information to someone not authorized to receive it and conspiring to disclose that information. Each count carries a maximum sentence of 10 years in prison.
The timing is central to the dispute. Espionage Act offenses of this kind carry a 10-year statute of limitations, and the filing came exactly 10 years after the alleged disclosure. Rather than securing a grand jury indictment, prosecutors used a criminal information, which the department said was filed to toll, or pause, the deadline.
“Filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals,” the Justice Department said, adding that the investigation is ongoing.
Napolitano was not convinced. He said that while some parts of the country have precedent for the move, there is none in Washington, D.C. He also questioned whether the information Comey allegedly disclosed was significant enough to support a case.
Former federal prosecutor Doug Burns backed him up during the segment. “If you change the rules, you better be prepared to live by them,” Burns said, quoting his father.
Comey’s legal team, led by Patrick Fitzgerald, has argued that the statute of limitations requires an indictment and cannot be extended by an information filed without the defendant’s consent. Fitzgerald told prosecutors on Oct. 5 that Comey had not waived indictment. In a motion to dismiss filed Oct. 16, the defense called the information a nullity.
Comey has denied wrongdoing and maintains his innocence. His attorneys also say the allegations were investigated previously without resulting in charges.
Other legal analysts have raised similar concerns. CNN legal analyst Elie Honig, a former federal prosecutor, called the move bizarre and likely improper, noting that an information typically requires the defendant’s agreement. Michael Bromwich, a former Justice Department inspector general, said he had never encountered an information being used this way.
Ultimately, a judge will decide whether the case can move forward.
This marks the third criminal case the Trump Justice Department has brought against Comey since 2025. In September 2025, he was indicted on charges related to his 2020 Senate testimony, a case later dismissed after a judge ruled the prosecutor who brought it had been improperly appointed. He has also been accused in a separate case of threatening the president.
Trump has been a fierce critic of Comey, who led the FBI during the bureau’s investigation into the 2016 Trump campaign. Supporters of the prosecution say no one is above the law, while critics argue the department is stretching legal boundaries to target the president’s political enemies.
