Today, word leaked out that a grand jury in the District of Columbia refused to indict Cassidy Hutchinson. There—if you need it—is the explanation for why the government used an information to charge Jim Comey, bypassing the grand jury. This was the third attempt to prosecute Comey, and the case was apparently too weak for even this Justice Department to think it could get it past a grand jury.
It used to be unusual for a grand jury to refuse to indict. Now it’s becoming increasingly common, and the government’s new move to bypass grand jury scrutiny altogether speaks volumes about the quality of the revenge docket cases DOJ is willing to bring to please the president.
The fact that Comey is charged in an information, and not an indictment, has legal significance. As a reminder, here’s the difference: An indictment is a criminal charge issued by a grand jury that hears the prosecutor’s evidence and makes a finding that there is probable cause to support the charges. An information is a document drafted by prosecutors and signed only by them. It looks similar to an indictment, but at the top it reads something along the lines of “The U.S. Attorney charges” instead of “The Grand Jury Charges.”
Federal Rule of Criminal Procedure 7(a) generally requires an indictment for felony cases, and Rule 7(b) permits prosecution by information if the defendant waives indictment. The Fifth Amendment requires the government to go to a grand jury to charge a federal felony. Informations are used when a defendant has cut a plea deal with prosecutors and agreed to waive indictment. Comey did not. So this is a “waiverless information.” Prosecutors, as those of you who heard Preet Bharara’s and my podcast discussion today on the Insider podcast know, could not proceed with this case without taking it to the grand jury for indictment first.
Comey is charged with two counts of violating 18 U.S.C. § 793, which covers crimes involving receipt, possession, transmission, etc., of National Defense Information. (If it sounds familiar, it might be because it was one of the charges against Donald Trump in the Mar-a-Lago case.) Here’s where it gets a little tricky legally. Prosecutors have said they filed the information to stop the statute of limitations, which was going to run out the very day they filed. Prosecutors must charge on or before the last date in that statutory period, or it’s too late, and they lose their ability to charge.
The statute of limitations for this particular crime is unusual. It’s ten years. The general federal limitations statute, 18 U.S.C. § 3282(a), is five years for non-capital offenses: “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” (emphasis added) But for espionage crimes, like the ones Comey is charged with, it’s ten years. Here’s the statutory language: “An indictment for any violation of title 18, United States Code, section 792, 793, or 794, other than a violation constituting a capital offense, may be found at any time within ten years next after such violation shall have been committed.” You can see the difference in the language I put in italics. For the first five years, an indictment or an information will do. But from years five through ten, Congress expressly provides that only an indictment will qualify.
Comey’s lawyers explain how the courts should view this kind of language in the laws Congress passes. In 1983, the Supreme Court ruled in Russello v. United States that when Congress includes specific language in one law but omits it from another, there is a presumption that Congress meant for the laws to be different. In other words, the use of “indictment” and “information” both in one law, but only “indictment” in the other, is not unintentional. The Court reinforced that rule in 2014 in Loughrin v. United States, where it directed courts to interpret laws by giving meaning to the language that is used in them and avoid construction of the laws in ways that treat Congress’ choice of words as meaningless. So, when Congress only uses the word “indictment” in a law, as it did here, it means it, and an information does not ring the bell to keep the statute of limitations from running out.
The government relies on a trio of cases that allow an information to keep the statute-of-limitations from running out. But those cases were governed by the general five-year statute of limitations rule that specifically designates both “indictments” and “informations.” None involved the ten-year statute of limitations that applies to the Espionage Act. And that’s a key difference that makes the government’s cases inapplicable here. Comey’s defense team has the better of the argument by far, and it would be unsurprising to see the judge dismiss the case. In the reply brief that they filed tonight, Comey’s team put it succinctly: “Here, the government seeks to take advantage of the special extended ten-year limitations period in Section 19, but it has not secured the legal instrument that Section 19 requires: an indictment. Instead, it filed a waiverless information at the ten-year deadline. That information does not satisfy Section 19’s explicit requirements and must be dismissed as time-barred.”
Friday morning, Judge Trevor McFadden, a Trump appointee, will hold a hearing in the case. We’ll be watching closely.
The government also had a tough time at a hearing before District Judge David Carter over its California gambit to interfere with the vote after the Ninth Circuit declined to hear its appeal. Judge Carter appointed a special master to investigate the process DOJ used for determining who on California’s rolls is a suspected noncitizen voter. That process will permit him to develop a record to support whatever ruling he makes; he did not rule today.
But the judge did admonish the government, “This court thinks it would be wise that any threats to state or local officials should cease immediately.” That’s judge-speak for “you’re in deep trouble.” I don’t think it’s an empty threat here. Judge Carter is 82 years old. Bill Clinton appointed him to the federal bench. He’s been a judge in California’s Central District, which includes Los Angeles, since 1998. Judge Carter is a former U.S. Marine who served in Vietnam, where he was awarded the Bronze Star and a Purple Heart. If the Justice Department thinks it’s going to push him around, I suspect it’s in for a rude awakening. He closed the hearing by promising a decision tomorrow.
My Brennan Center colleague Wendy Weiser got this one just right.
We all owe respect and appreciation to our friends and neighbors who are running our elections. It’s a good thing Judge Carter spoke up on their behalf. It’s too bad Republican elected officials lack the courage to do the same.
A federal judge disqualified Bill Essayli, Trump’s stand-in as U.S. Attorney for the Central District of California, from overseeing several cases. Essayli is technically the First Assistant in the office, but they Judge found that he is acting as a U.S. Attorney in violation of the Vacancies Reform Act. The order is stayed for a week to give the government time to appeal. Former DOJ employee “EagleEdMartin” on Twitter, who the Senate declined to confirm as the U.S. Attorney for the District of Columbia, reposted the news, writing, “Impeaching Judges is Necessary at Times.”
Increasingly, most days in court are bad days for the Trump administration, unless it’s before the Supreme Court, which continues to bless the administration's immigration and deportation agenda. Today, the Court “cleared the way for the Trump administration to restrict a Biden-era policy that allows immigration judges to use their discretion to close thousands of deportation cases each year.” That means cases involving kids or crime victims will no longer be spared from deportation. And it’s a good reason to get out and vote if you haven’t already. Democratic control of the Senate would block Trump from confirming additional justices if the opportunity arises.
Finally, on a personal note, one of our chickens flew the coop (or rather, over the fence) this afternoon. This happens occasionally, as they get flustered easily. The kids and I had to track her down in the alley behind our house. We were able to retrieve her safely, but I wanted to make sure nothing was wrong and give her a square meal before putting her to bed in the coop with her friends.
She gave me a lot of side-eye while she was soaking in the bath but seemed to end up enjoying it. She dried off nicely, although, as you can see, I’m a little worse for wear. There was a lot of splashing.
It’s all about balance, right? I take it where I can get it these days.
It’s only Tuesday, but this is shaping up as one of those weeks where the news comes at us so fast that it’s hard to keep up. But these developments all matter, and my goal is to make sure we’re able to understand them and what they tell us about where this administration is trying to take our country. If you read Civil Discourse regularly but aren’t yet a paid subscriber, I hope you’ll consider it. Your support lets me devote the time it takes to write the newsletter, and it means everyone has access to it, whether they can afford a subscription or not. Especially during weeks like this, I think that’s worth doing together.
We’re in this together,
Joyce
