Comey’s pending motions could be key.
Comey’s pending motions could be key.
T he federal judge assigned to rule on challenges to Lindsey Halligan’s appointment as interim U.S. attorney has thrown out the indictments against former FBI Director James Comey and New York Attorney General Letitia James on the ground that Halligan was not lawfully appointed.
Judge Cameron McGowan Currie dismissed the indictments without prejudice to the Justice Department’s reindicting the cases.
Not to toot my flute here, but back on November 15, I told you this would happen (“Expect the Comey and James Indictments to Be Dismissed Without Prejudice”). The problem is twofold.
First, the statute that governs interim U.S. attorney appointments, Section 546 (of Title 28, U.S. Code), provides for a single 120-day interim period. Prior to Halligan’s being installed by Attorney General Pamela Bondi on September 22, 2025, at the direction of President Trump, her predecessor, Erik Siebert, had served a 120-day interim term. Siebert was banished by Trump over his refusal to charge Comey and James, concluding there was insufficient evidence.
As I’ve also previously explained, Bondi tried to cure this patent problem by naming Halligan a “special attorney” and backdating that designation to the start of her tenure. But she didn’t do that until October 31. By then, Halligan had indicted Comey on September 25 and James on October 9. The backdating couldn’t work because, at the time of the indictments, Halligan did not formally have the “special” status and the accompanying delegation of prosecutorial authority from Bondi.
Second (and as further explained here), Halligan’s status might not have required dismissal if she had assigned properly commissioned subordinates — “line prosecutors” known as assistant U.S. attorneys — to present the cases and sign the indictments. Authority to prosecute comes from the attorney general, not the district U.S. attorney. Halligan decided, however, to handle the grand jury presentations and sign the indictments herself, acting unilaterally with no assistance from subordinates. Hence, since she lacked prosecutorial authority at the time, the indictments were not legitimate.
Judge Currie is a senior Clinton appointee who sits in the District of South Carolina. She was assigned to decide the disqualification issue by the Fourth Circuit. The Comey and James motions were consolidated for decision.
To circumvent the Senate confirmation process and install loyalists as district U.S. attorneys, the Trump administration has tried to use and extend interim U.S. attorney appointments in various districts around the country. When those appointments have been challenged, the courts have taken the position that the judges who sit in the district court at issue should be recused (because they interact regularly with the U.S. attorney and, once the 120-day interim period expires, they vote on whether to retain the interim appointee). As a result, the courts of appeals for the circuits in which the affected districts are located have appointed judges from different districts within those circuits to decide disqualification issues.
Thus far, courts have found that the administration’s interim appointments were illegal in New Jersey, Los Angeles, and Nevada. There is also a challenge in the Northern District of New York — which has been pressed by James after the president’s interim appointee there opened an investigation of her civil fraud lawsuit against Trump. (That case, of course, was tried in late 2023; a New York appeals court threw out the nearly $500 million damages but kept the liability finding against Trump in place. Both sides are appealing to New York’s highest court.)
The Justice Department is already studying whether to appeal Judge Currie’s decision. I don’t see how an informed decision can be made about that until the judges presiding over the cases of Comey and James decide the other pretrial motions to dismiss filed in those cases. That is especially so in Comey’s case.
As I’ve noted, a federal criminal statute (Section 3288) allows the government to reindict a case, even if the statute of limitations has expired, as long as the indictment that was dismissed was timely filed. The statute gives the government six months to file a new indictment based on the same charges.
As noted above, Comey was indicted on September 25; the five-year statute of limitations expired on September 30 (because the charges stem from Senate testimony he gave on September 30, 2020).
In theory, then, since the Comey indictment was timely when it was filed, the government should have six months to reindict. That is why I said Judge Currie would likely dismiss the indictment without prejudice (meaning: without barring the government from bringing the charges again). This is what she did today.
Nevertheless, in this instance, Comey has also filed motions to dismiss that claim because (a) there was no properly filed indictment, (b) the indictment fails to state a crime, and (c) the prosecution is unconstitutionally vindictive and selective.
As I explained over the weekend, I think the court is likely to conclude that the two charges against Comey were legally indicted. Yet there appears to have been a host of grand jury irregularities, and Judge Nachmanoff could go the other way. If he finds that there technically never was an indictment because the grand jury didn’t approve one, I don’t see how Section 3288’s six-month provision can save the prosecution.
Similarly, if the judge finds that the indictment fails to state a crime — i.e., that the charges, as articulated, fail to fulfill an indictment’s function of putting the defendant on notice of what misconduct is alleged — I think, similarly, that would mean no valid indictment was timely filed. If so, then, again, the six-month provision doesn’t help the Justice Department.
Finally, with respect to Comey and James, let’s say the assigned judges find that the indictments must be dismissed because the prosecutions are unconstitutionally vindictive. If that’s the ruling, I don’t see how the same charges would be any less vindictive six months from now. Again, I don’t know how Section 3288 could save the prosecutions in such circumstances.
Consequently, I believe that the Justice Department needs to weigh the decisions on these other motions to dismiss before it would make sense to decide whether and how to appeal — not just to appeal Judge Currie’s ruling but the other judges’ rulings.
I expect we will be getting rulings on Comey’s motions from Judge Nachmanoff in the coming days.