The new Comey “case” — my take (spoiler alert: it is NOT what people are saying or focusing on, as I think people are missing the boat on the analysis).
1. DOJ proceeded by an Information, not by an Indictment. The Comey Information is a nullity, as it was not brought with Comey’s consent (which is required). So it is a nullity under the US Constitution, which requires a grand jury indictment for a federal felony to be charged.
2. The question thus is whether IF — and only IF — the government now could obtain an indictment by a grand jury for one or both charges alleged in the aborted Information would those new charges be within the applicable statute of limitations (SOL)?
3. Count one of the information, if now brought as an indictment, would not be within the SOL, as even applying the SOL for 10 years, an indictment today is past the 10/5/2026 date (ten years after the crime alleged on 10/5/2016). The new charges do not magically relate to a nullity; that is, the Information that was never properly brought (legal precedent deals with situations where the prior Information was properly brought, and thus inapplicable here).
4. Count two would be within the SOL, however, IF the government could adequately plead (as it alleged in the intro language of the count two in the Information) that the conspiracy continued to some point within the past ten years — ie past 10/27/2016 (using that date as an example if the Indictment were brought today).
5. It is not necessary to show an “overt act” in furtherance of the charged conspiracy is within the 10 years, I don’t think, where the criminal statute does not have an overt act requirement (as 793g — the crime alleged in count two — does not have). This is in contrast to when a criminal conspiracy statute does have an overt act requirement: then, an act must be found within the SOL period.
6. The SCOTUS Grunewald case would be a problem for the government showing factually there is some ongoing conspiracy beyond 10/5/2016, as the Court held mere secrecy/not revealing the crime is not sufficient to be an ongoing conspiracy.
7. All the Comey and DOJ briefing on whether section 3282 covers an Information vs an Indictment seems irrelevant to me, given that there has not been a valid information filed within ten years in any event.
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