DOJ left with few good options after Comey, James dismissals

The dismissal of two cases against adversaries of President Trump has left the Department of Justice (DOJ) with narrow and murky paths forward if it plans to continue prosecuting them.

A federal judge on Monday threw out the charges against former FBI Director James Comey and New York Attorney General Letitia James (D) after finding that the U.S. attorney handpicked by the president to pursue the cases was unlawfully appointed.

Any official actions taken by Lindsey Halligan, the top prosecutor, amounted to “unlawful exercises of executive power and must be set aside,” U.S. District Judge Cameron Currie ruled.

However, the judge left open a door for the DOJ, dismissing the cases in a manner that could allow prosecutors a do-over — albeit, if not entirely on their own terms.

“This decision previews what lies ahead if DOJ does try to reindict, and certainly, the department should be thinking very carefully about whether they want to wage this battle, as well,” said Jackie Kelly, a former federal prosecutor in the Southern District of New York. “But if you accept the attorney general at her word, it appears that they are full steam ahead on these prosecutions any way they can get there.”

A ‘fraught’ way forward

Though there’s a dizzying number of potential pathways forward, none of them look particularly promising for the Justice Department.

While the judge left the door open to bringing the case again, at least with Comey the case would face a statute of limitations issue, as the conduct in question is now more than five years old.

“I do think they’ll just try and rebring the case, that’s my guess. But it’s still a path that is fraught with a lot of obstacles, and rightly so,” said Rep. Glenn Ivey (D-Md.), a former prosecutor.

The judge signaled any attempt to revive the case beyond the statute of limitations would be a long shot, though she did not rule on the matter squarely, only previewing the fight to come.

And while it’s possible another court could overturn the ruling and reinstate Halligan as interim U.S. attorney, the court would go right back to dissecting several other issues with the case.

Beyond asking the court to dismiss the case on the basis of Halligan’s improper appointment, Comey’s team had also argued the case should be dismissed because of issues with grand jury proceedings and because the case amounted to a vindictive prosecution given Trump’s feud with the former director. James’s legal team made similar arguments that she was unlawfully targeted.

“I mean, it’s hard to imagine a stronger vindictive prosecution set of facts than you’ve got here. I mean, the president himself is ordering the attorney general to bring the charges, basically. And he’s been after Comey — and James too — for years. And there’s such an extensive paper trail of the most incriminating kind of statements. You would think that they’d have to win that at some point too,” Ivey said.

“I think these are weak facts,” he said of the Justice Department’s case, noting that even if the cases do eventually go to trial, they may not be viewed favorably by juries.

“You have juries return acquittals, just like the Subway guy.”

Comey, James face different odds

Attorney General Pam Bondi vowed Monday that the Justice Department would seek an “immediate appeal” of Currie’s decision, doubling down on the cases and defending Halligan as an “excellent U.S. attorney.”

But there’s nothing stopping prosecutors from simultaneously seeking to reindict the Trump foes, Kelly said — though that may be easier said than done.

“With respect to Leticia James, there isn’t a major roadblock to them doing that,” she said. “With respect to James Comey’s case, there’s a real question about whether they even can.”

The dismissals may have triggered a law that lets the Justice Department attempt to reindict within six months, even after the statute of limitations has expired. However, the law says a “valid” indictment must have been pending at the time the statute would have run.

In a footnote, Currie suggested that a “void” indictment would mean that the second-chance trigger could not occur and that the clock has run out on DOJ’s chance to indict Comey on the false statements and obstruction charges over his 2020 congressional testimony.

“She’s saying a valid indictment insulates you from statute limitations problems,” said Katie Sweeten, a former federal prosecutor and partner at the law firm Scale LLP. “So, because this indictment was not valid, they don’t get to say, ‘Hey, you know, we hit pause however many days before the statute of limitations ran.’”

However, the question wasn’t directly before Currie, so it’s yet to be answered. It would appear the Justice Department is “out of luck” if the issue is litigated and her view is adopted, Kelly said.

“But of course, this is a really unique situation, and it hasn’t been tested yet,” she added.

Hinging on Halligan

Halligan’s disqualification marked a death knell for the cases, despite the Justice Department’s retroactive efforts to save them by appointing her to another, simultaneous role of special attorney.

Currie wrote that the original appointment was “invalid” and the retitling “ineffective,” meaning Halligan was not an attorney for the government at the time she indicted Comey and James.

“The implications of a contrary conclusion are extraordinary,” the judge wrote. “It would mean the Government could send any private citizen off the street — attorney or not — into the grand jury room to secure an indictment so long as the Attorney General gives her approval after the fact. That cannot be the law.”

However, Bondi affirmed Monday that Halligan’s title of special attorney is sticking — and if Trump’s other disqualified U.S. attorneys are an indication, she’s likely not going anywhere.

“It’s a separate question of whether she can continue leading the office and putting her name on indictments going forward as the special attorney,” Kelly said. “And I would expect that that will be challenged, as well, as an end-run around the same statute. But that is an issue that hasn’t played out.”

That’s even as Currie found the law is “clear” that the power to appoint an interim U.S. attorney shifts to a district’s judges after the 120-day temporary term runs out. That appointee would serve in the post until Trump’s nominee — now Halligan — cleared Senate confirmation.

Halligan was the fourth of Trump’s U.S. attorneys to be found unlawfully appointed, following top prosecutors in New Jersey, Nevada and the California district that includes Los Angeles.

They’re each still running their offices, albeit under different titles or court-ordered injunctions as the administration appeals. As Trump seeks to install loyalist U.S. attorneys, his administration has doubled down that the prosecutors were legally put in the posts.

Sweeten said having Halligan come in as a special attorney is also likely “legally ineffective” and “impermissible.”

“But, I mean, I don’t know that they’re going to go physically walk her out of the building, right?” she said. “Like, who’s going to do that?”

A glimmer of hope for DOJ

It’s not all bad news for the Justice Department.

In fact, if prosecutors prevail in reindicting him, Comey’s dismissal could be a blessing in disguise.

The former FBI director alleged that his case was rife with procedural errors, primarily stemming from Halligan’s inexperience as a prosecutor. A magistrate judge found she made apparent misstatements of law to grand jurors, while prosecutors admitted to a judge that the final indictment was never seen by the full grand jury, though later walked it back.

“It does allow them to clean up a lot of the other errors that were present,” Kelly said.

But others expressed skepticism that DOJ would ultimately prevail given that many of the other issues already present in the case would once again resurface.

“These guys are not a group to take the hint, so they’ll probably try and move forward with it again, one way or the other,” Ivey said.

“But I think ultimately these are losing cases, and that’s going to be the end result.”

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