On September 25, 2025, former FBI Director James Comey was indicted on charges of making false statements to Congress and obstruction of a congressional proceeding. The charges stem from his September 30, 2020 testimony to the Senate Judiciary Committee about whether he authorized FBI personnel to serve as anonymous sources to the media. His arraignment is set for October 9 in Alexandria, Virginia. Comey’s response? “I’m innocent. . . . let’s have a trial.”
Here’s my prediction: Comey is going to invoke his rights under the Speedy Trial Act and force the government to trial in 70 days. And given the circumstances of this case, it might be the smartest strategic move available to him. Let me explain why—and what the Speedy Trial Act means in a high-stakes white-collar case like this one.
The Speedy Trial Act: One of the Few Times the Defendant Controls the Clock
Being under criminal investigation is a stunningly powerless situation. You can’t control when the government starts investigating, how long it lasts, or when it will end. The Speedy Trial Act presents one of the few times a criminal defendant can dictate the pace of the case. Invoking it, however, is a massive strategic risk.
The statute itself isn’t particularly complicated. Under 18 U.S.C. § 3161, trial must commence within 70 days after indictment or the defendant’s initial court appearance, whichever comes later. You’re guaranteed at least 30 days to prepare for trial. In theory, if the government violates your speedy trial rights, the charges against you may be dismissed. This is a long-shot argument and unlikely in a complex white-collar case, but it’s there.
Here’s where it gets interesting: that 70-day period is far from absolute. The statute defines all sorts of times when the clock stops because of “proceedings concerning the defendant.” Defense-side delays are excluded from the 70-day limit, including:
- Delay from any interlocutory appeal (so if you appeal a privilege ruling, your Speedy Trial Act clock slows down)
- Delay from filing “any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion”
- Delay from the court’s consideration of a proposed plea agreement
- Delay resulting from “the absence or unavailability of the defendant or an essential witness”
The government can get delays too. If it serves “the ends of justice,” the court can grant a continuance. And the Act defines a whole host of reasons when a court should grant a delay for the government: whether failing to grant a continuance would result in a miscarriage of justice; whether the case is so unusual or complex that adequate preparation within the time limits is unreasonable; whether denial would deprive either party of reasonable time for effective preparation.
Can the Government Get a Delay of Trial in This Case?
The indictment is very short (two pages and five paragraphs). None of the factual or legal issues are so unusual or complex as to make it difficult for the government to prepare for trial in a couple of months. I think the government would have a hard time seeking a delay of the trial.
One strategy call for the defense will be whether to file a Rule 12 motion for dismissal based on vindictive prosecution. This could slow down the clock a little bit. But because the case in the famed EDVA “Rocket Docket,” even a motion like that one will be decided in a few weeks.
If Mr. Comey seeks discovery from the government to gather evidence of vindictive prosecution, this could lead to a much longer delay. The government will resist that request and would likely appeal any order granting discovery all the way to the Supreme Court. (These days, this is not hyperbole—they really will appeal it all the way.)
Why Mr. Comey May Want to Invoke the Right
There are some benefits to invoking speedy trial rights in this case, they are not trivial.
The DOJ lawyer does not appear to be up to the task. U.S. Attorney Lindsey Halligan—the only lawyer so far to enter her appearance—is out of her depth against Mr. Comey’s lawyers Patrick Fitzgerald and Jessica Carmichael. Presumably, someone else from DOJ with criminal trial experience will enter their appearance but it’s not clear who that will be. EDVA is normally chock-full of good trial lawyers and the fact that no one else has entered their appearance says something about this case.
Weak DOJ lawyering will undermine its case. You can’t underestimate the power of a clean and efficient trial presentation. If the government’s witnesses are out of order or ill-prepared for cross-examination, then it’s harder for the jury to understand its theory of the case. If the exhibits are in disarray, then the government’s theory of the case could get muddled. All the defense needs is reasonable doubt, and a disorganized trial presentation by the government can help secure it.
Another benefit to invoking the right is that a quick trial will end the intense scrutiny on Mr. Comey. This case will be a whirlwind of media attention and that may not be much fun for Mr. Comey. Sure, he’s used to media attention. But there’s a world of difference between media attention when you are the FBI Director and when you are a criminal defendant.
Why Most Defendants Do Not Invoke Their Speedy Trial Rights
There are substantial downsides that make invoking speedy trial rights in white-collar cases exceptionally risky.
The most critical concern is that defense counsel may lack sufficient time to prepare an adequate defense. This is usually the deal-breaker. In my practice, I have never invoked the Speedy Trial Act because I have always needed substantial time to prepare the defense properly.
The time required to review discovery, locate witnesses, and develop legal and factual defenses in a complex white collar criminal case is considerable. The indictment may contain charges you hadn’t anticipated, requiring additional research and preparation. If the case involves expert witnesses, preparing your expert and preparing to cross-examine the government’s experts is a lengthy, complex process that cannot be rushed without compromising quality.
Second, as discussed earlier, the Act contains numerous exceptions. When courts consider pretrial motions, the 70-day period is postponed. The government can obtain delays if they serve the “ends of justice.” Even if you rush your defense preparation to meet the deadline, the government may still secure enough time to assemble its case properly.
Third, remember that the government typically had months or years to prepare its case. The defense, by contrast, lacks these investigative advantages. Rule 17(c) subpoenas are far less effective than grand jury subpoenas and take considerable time to deploy.
Here, however, the case against Mr. Comey is not that complicated and it’s hard to imagine that his defense team needing more than the 70 days to get ready. It will still be a race against the clock but if there is not too much discovery, and not too many witnesses to prep, it is absolutely possible for experienced trial lawyers like Fitzgerald and Carmichael to get ready for trial.
If Comey invokes his Speedy Trial Act rights, we may witness one of the most dramatic courtroom confrontations in recent memory: A former FBI Director forcing DOJ to trial on an accelerated timeline in a weak case with profound political implications.