As sure as the sun will rise, the Justice Department is going to figure out a way to reindict former FBI Director James Comey and New York Attorney General Letitia James—because why let a little thing like the law stand in the way of President Donald Trump’s retribution demands?
Both the Comey and James indictments were tossed out when Trump’s favorite former real estate lawyer, Lindsey Halligan, was booted from her position atop the Eastern District of Virginia. But since those were dismissed without prejudice, the DOJ can refile them.
Former FBI Director James Comey
There are several nakedly desperate options here. The DOJ could just skip appealing Halligan’s disqualification, though that seems odd in light of Attorney General Pam Bondi’s tough talk about doing so.
However, since Bondi had already named Halligan a “special attorney” in charge of the Comey and James cases, Halligan could present to a grand jury in that role. Sure, but it isn’t like calling Halligan “special attorney” instead of “acting attorney” is going to make her any better at her job.
The other alternatives for seeking a new indictment would be to have actual, competent prosecutors present to the grand jury. But Halligan already had to get special guest prosecutors from outside of her district to help because everyone else declined to touch this mess.
Meanwhile, FBI Director Kash Patel—possibly the dumbest person in Trump’s administration—gave away the game in an interview with the Epoch Times.
“The judicial process can make whatever determination it wants, but we at the FBI and our partners at the DOJ have numerous options to proceed, and we’re executing on all those options. So we’re not done,” Patel said.
He also did a little teaser announcement that after Thanksgiving, there would be “multiple responses” from federal law enforcement.
It’s like the administration tasked Patel with giving Comey and James a blueprint, should the DOJ manage to wrangle new indictments, to succeed on their claims that they should be dismissed.
While the DOJ can likely just reindict James on the trumped-up mortgage fraud charges—well, if they can find a grand jury to agree—it faces a problem doing so with Comey.
Lindsey Halligan
The charges against Comey were based on his alleged lies to Congress in 2020 about something he said in 2017, which was already a very slender reed to hang a prosecution on. Halligan got in just under the five-year statute of limitations, which has since run.
There is a federal law that generally allows the government to refile, even if the statute of limitations has run, within six months of the dismissal of the indictment. But here’s where things get messy.
Comey’s attorney, Patrick Fitzgerald—no slouch in this department—said that the dismissal “indicates that because the indictment is void, the statute of limitations has run and there can be no further indictment.”
The judge who threw Halligan out of a job said in a footnote to her opinion that an invalid indictment “cannot serve to block the door of limitations as it swings closed” and that if the dismissed indictment is void, “there is no legitimate peg on which to hang such a judicial limitations-tolling result.”
And if the indictment was voided, it functionally never existed, so the government doesn’t get that extra six months. But we can all speculate about this, but we won’t really know how this will play out until the DOJ manages to bring a new indictment and Comey inevitably challenges it.
Isn’t it fun to live in a time where every day is both a constitutional law crisis and requires us all to learn arcane details about statutes of limitation?
