It's been over a week since a federal judge threw out indictments against James Comey and Letitia James in the Eastern District of Virginia. Despite initial reactions that pledged immediate action in response, the Department of Justice has been mighty quiet. After yesterday's similar setback at the Third Circuit over essentially the same problem, that silence has grown loud indeed.
Politico's legal team reports today that the DoJ still hasn't figured out the next steps on the indictments against James and Comey. Until yesterday, an appeal might have made the most sense, but now it may take a return to Square One instead:
The Justice Department is quietly mulling whether to seek new indictments against former FBI Director James Comey and New York Attorney General Letitia James, a gamble to salvage the cases against two of President Donald Trump’s perceived political foes.
A week after a federal judge threw out both cases — prompting a vow by the White House and Justice Department to quickly appeal — federal prosecutors have taken no public steps to revive the cases. But two people familiar with the cases, who spoke on condition of anonymity to describe ongoing internal deliberations, said the department is strongly considering forgoing an appeal and instead asking one or more grand juries to re-indict Comey and James.
Such a move could be politically fraught. A new grand jury could decline to greenlight charges against Comey or James, risking Trump’s ire and another embarrassing blow after the Justice Department has faced intense scrutiny for its handling of the cases.
What about an appeal? Attorney General Pam Bondi and White House Press Secretary Karoline Leavitt both promised immediate appeals in the ruling on Lindsey Halligan's disqualification, but none has yet been filed. An appeal would be the most direct route to a cure, especially on Comey's case, for reasons we'll discuss in a moment. However, it appears that Bondi and the DoJ may have waited to see if Alina Habba would prevail in her appeal to the Third Circuit on a Section 546 disqualification first. The unanimous ruling that upheld the DQ may change that calculus for an appeal on Halligan.
Now that Halligan's status as a "special attorney" at the DoJ has been established, the cleanest route would be to get new indictments on both James and Comey. (Halligan had been an interim US Attorney in violation of Section 546 at the time of the original indictments, and Bondi changed her status a month later when her status got challenged.) As Josh Gerstein and Kyle Cheney point out, that would suffice for the charges on James, assuming that another grand jury in the Eastern District of Virginia would issue a true bill the second time around. The Comey indictment is another matter:
One legal analyst said those options may be successful at re-leveling the mortgage fraud charges against James, the New York attorney general, but is unlikely to work to resurrect the case against Comey, the former FBI director charged with lying to and obstructing the work of a Senate committee. The statute of limitations to prosecute Comey ran out five days after Halligan brought charges against him.
“For Attorney General James, there’s no problem re-indicting here,” said Gene Rossi, a former senior federal prosecutor in the eastern Virginia office Halligan was tapped to run. “For Comey, there’s no hook. … For the Comey case, I think it’s gone.”
I warned about that when Judge Cameron McGowan Currie tossed out the indictments shortly before Thanksgiving. Judge Currie dismissed the indictments "without prejudice," meaning that prosecutors could seek new indictments, but that doesn't negate the statute of limitations. Some anaysts believe that Bondi and Halligan could argue that the technical dismissal freezes the clock on the statute of limitations, but the circumstances of the timing would likely play against any sympathy that might exist for that argument:
This also relates to the other bad news in Comey's case, specifically. The statements that Halligan cited in the prosecution are now more than five years old, which means that the statute of limitations applies. The DoJ barely beat that statute in filing the case in September. Even if Currie denies the motion to dismiss on the issue of retribution, the DoJ will have to issue a new indictment after the expiration of the limiting statute, and that would almost certainly spell an end to this prosecution. The DoJ can complain all they want about the dismissal, but they had several months this year to pursue the case against Comey and waited until almost literally the last moment.
This indictment against Comey didn't result from a years-long investigation. The DoJ took it up this year and had all of the facts of the case almost immediately, and yet delayed action until almost literally the last moment. Even if a federal statute leaves room for re-indictment due to court intervention, the question will arise about the DoJ's delay on action.
Of course, the DoJ could pursue both options at the same time. They might argue that Halligan's disqualification shouldn't impact the indictments themselves, as the Third Circuit ruled in Habba's disqualification that kept the indictment in place. That would allow a different US Attorney or "special attorney" to pursue the Comey prosecution. At the same time, Halligan as the current "special attorney" could seek new indictments to cure the disqualification from Judge Currie. If the appeal doesn't work – or isn't tried at all – chances are that Comey will be off the hook. If that's the case, the DoJ will have no one to blame but itself for missing its chance.
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