lindsey halligan

WASHINGTON — A federal judge’s dismissal of criminal cases against former FBI Director James Comey and New York Attorney General Letitia James, two political foes of President Trump, won’t be the final word on the matter.

The Justice Department says it plans to immediately appeal a pair of rulings that held that Lindsey Halligan was illegally appointed interim U.S. attorney for the Eastern District of Virginia. It also has the ability to try to refile the cases, though whether it can successfully secure fresh indictments through a different prosecutor is unclear, as is whether any new indictments could survive the crush of legal challenges that would invariably follow.

A look at the possible next steps:

What exactly did the rulings say?

At issue is the slapdash way the Trump administration raced to put Halligan in charge of one of the Justice Department’s most elite offices. A White House aide with no prior experience as a federal prosecutor, Halligan was named interim U.S. attorney in September after the veteran prosecutor who held the job, Erik Siebert, was effectively forced out amid Trump administration pressure to charge Comey and James.

U.S. attorneys, top federal prosecutors who oversee regional Justice Department outposts across the country, are typically nominated by the president and confirmed by the Senate, though attorneys general do have the authority to directly appoint interim U.S. attorneys who can serve in the job for 120 days.

But lawyers for Comey and James argued that the law empowers only one such temporary appointment and that, after that, federal judges in the district have say over who fills the vacancy until a Senate-confirmed U.S. attorney can be installed.

Since Halligan replaced an interim U.S. attorney who had already served for more than 120 days, the lawyers said, her appointment was invalid and the indictments she secured must be dismissed as a result.

U.S. District Judge Cameron McGowan Currie overwhelmingly agreed. Currie, an appointee of President Bill Clinton who was assigned to hear the dispute despite serving in South Carolina, not only dismissed the cases but also concluded that Halligan had been serving illegally in her position since the day she was sworn in.

Could the Justice Department appeal?

Yes, and Atty. Gen. Pam Bondi indicated that the department would do exactly that.

Any appeal would first be considered by the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, but theoretically could go all the way up to the Supreme Court and present a fresh constitutional test about the Justice Department’s appointment authority.

Interestingly, Currie implied that her interpretation of the law might be well-received by at least one current conservative member of the Supreme Court.

In a footnote, she cited a 1986 legal memo from Samuel Alito, then a deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, that concluded that the Justice Department could not make another temporary appointment after a first 120-day period expired.

Can the cases be filed again?

Since the cases were dismissed “without prejudice,” the Justice Department is clearly able to seek a new indictment against James using a different prosecutor with lawful authority to present to the grand jury.

The question, however, is much trickier in Comey’s case. It’s complicated by the fact that the five-year statute of limitations — or the limited time in which charges can be filed — expired at the end of the September, just days after Halligan raced to present to the grand jury.

Federal law allows prosecutors to return a new indictment within six months of dismissal even after the statute of limitations has passed. But Comey’s lawyers said they will argue the judge’s ruling makes the indictment “void,” and therefore “the statute of limitations has run and there can be no further indictment.”

The judge noted in her ruling that the deadline had passed and suggested that the statute of limitations is not tolled — or paused — in the case of an “invalid indictment.” Quoting from an earlier ruling, the judge wrote that “if the earlier indictment is void, there is no legitimate peg on which” to extend the deadline.

Regardless, the Justice Department in either case would have to convince a new grand jury to return new indictments, and that may be harder given the intense publicity around the cases. Widespread media coverage of the allegations and the defense claims of improper conduct by prosecutors could make it more difficult to find grand jurors who can view the cases impartially.

What happens to the other challenges to the indictments?

For now, those arguments are all moot as the Justice Department labors to salvage the indictments.

But in the event prosecutors do succeed in getting new indictments, they’ll likely have to fend off some of the same challenges that Comey and James had already raised and that remain pending as of Monday’s rulings.

Comey is charged with lying to Congress about whether he authorized an associate to serve as an anonymous source for the news media. James was charged with bank fraud and making false statements to a financial institution in connection with a home purchase in Norfolk, Va., in 2020.

Both have pleaded not guilty and had urged judges to throw out their indictments on grounds that the prosecutions were illegally vindictive and emblematic of a Justice Department that’s been weaponized to pursue the president’s adversaries. Those arguments would presumably be revived in the event of any new indictments.

Comey, for his part, has challenged a series of irregularities in Halligan’s presentation to the grand jury after a different judge who reviewed a record of the proceedings said he had identified a series of flaws — including the fact that the prosecutor apparently suggested to the panel that Comey did not have a Fifth Amendment right to not testify at trial.

He has also said that the testimony he gave to the Senate Judiciary Committee that underpins his criminal case was truthful and that, in any event, the question he was responding to was so vague and ambiguous as to make a false statement prosecution a legal impossibility.

Tucker and Richer write for the Associated Press.

WASHINGTON — The Justice Department engaged in a “disturbing pattern of profound investigative missteps” in the process of securing an indictment against former FBI Director James Comey, a federal judge ruled Monday in directing prosecutors to provide defense lawyers with all grand jury materials from the case.

Those problems, wrote Magistrate Judge William Fitzpatrick, include “fundamental misstatements of the law” by a prosecutor to the grand jury that indicted Comey in September, the use of potentially privileged communications during the investigation and unexplained irregularities in the transcript of the grand jury proceedings.

“The Court recognizes that the relief sought by the defense is rarely granted,” Fitzpatrick wrote “However, the record points to a disturbing pattern of profound investigative missteps, missteps that led an FBI agent and a prosecutor to potentially undermine the integrity of the grand jury proceeding.”

The 24-page opinion is the most blistering assessment yet by a judge of the Justice Department’s actions leading up to the Comey indictment. It underscores how procedural missteps and prosecutorial inexperience have combined to imperil the prosecution pushed by President Trump for reasons separate and apart from the substance of the disputed allegations against Comey.

The Comey case and a separate prosecution of New York Atty, Gen. Letitia James have heightened concerns that the Justice Department is being weaponized in pursuit of Trump’s political opponents. Both defendants have filed multiple motions to dismiss the cases against them before trial, arguing that the prosecutions are improperly vindictive and that the prosecutor who filed the charges, Lindsey Halligan, was illegally appointed.

A different judge is set to decide by Thanksgiving on the challenges by Comey and James to Halligan’s appointment.

Though grand jury proceedings are presumptively secret, Comey’s lawyers had sought records from the process out of concern that irregularities may have tainted the case. The sole prosecutor who defense lawyers say presented the case to the grand jury was Halligan, a former White House aide with no prior prosecutorial experience who was appointed just days before the indictment to the job of interim U.S. attorney for the Eastern District of Virginia.

In his order Monday, Fitzpatrick said that after reviewing the grand jury transcript himself, he had come away deeply concerned about the integrity of the case.

“Here, the procedural and substantive irregularities that occurred before the grand jury, and the manner in which evidence presented to the grand jury was collected and used, may rise to the level of government misconduct resulting in prejudice to Mr. Comey,” Fitzpatrick said.

The Justice Department responded to the ruling by asking that it be put on hold to give prosecutors time to file objections. The government said it believed Fitzpatrick “may have misinterpreted” some facts in issuing his ruling.

Fitzpatrick listed, among nearly a dozen irregularities in his ruling, two comments that a prosecutor — presumably, Halligan — made to the grand jury that he said represented “fundamental misstatements of the law.”

The actual statements are blacked out, but Fitzpatrick said the prosecutor seems to have ignored the fact that a grand jury may not draw a negative inference about a person who exercises his right not to testify in front of it. He said she also appeared to suggest to grand jurors that they did not need to rely only on what was presented to them and could instead be assured that there was additional evidence that would be presented at trial.

The judge also drew attention to the jumbled manner in which the indictment was obtained and indicated that a transcript and recording of the proceedings do not provide a full account of what occurred. Halligan initially sought a three-count indictment of Comey, but after the grand jury rejected one of the three proposed counts and found probable cause to indict on the other two counts, a second two-count indictment was prepared and signed.

But Fitzpatrick said it was not clear to him in reviewing the record that the indictment that Halligan presented in court at the conclusion of the process had been presented to the grand jury for its deliberation.

“Either way, this unusual series of events, still not fully explained by the prosecutor’s declaration, calls into question the presumption of regularity generally associated with grand jury proceedings, and provides another genuine issue the defense may raise to challenge the manner in which the government obtained the indictment,” he wrote.

The two-count indictment charges Comey with lying to Congress in September 2020 when he suggested under questioning that he had not authorized FBI leaks of information to the news media. His lawyers say the question he was responding to was vague and confusing but the answer he gave to the Senate Judiciary Committee was true.

The line of questioning from Sen. Ted Cruz appeared to focus on whether Comey had authorized his former deputy director, Andrew McCabe, to speak with the news media. But since the indictment, prosecutors have made clear that their indictment centers on allegations that Comey permitted a separate person — a close friend and Columbia University law professor, Dan Richman — to serve as an anonymous source in interactions with reporters.

The FBI executed search warrants in 2019 and 2020 to access messages between Richman and Comey as part of a media leaks investigation that did not result in charges. But Fitzpatrick said he was concerned that communications between the men that might have been protected by attorney-client privilege — Richman was at one point functioning as a lawyer for Comey — were exposed to the grand jury without Comey having had an opportunity to object.

Tucker writes for the Associated Press.

ALEXANDRIA, Va. — Lawyers for two of President Trump’s foes who have been charged by the Justice Department asked a judge on Thursday to dismiss the cases against them, saying the prosecutor who secured the indictments was illegally installed in the role.

U.S. District Judge Cameron McGowan Currie didn’t immediately rule from the bench but said she expects to decide by Thanksgiving on challenges to Lindsey Halligan’s appointment as interim U.S. attorney for the Eastern District of Virginia.

The requests are part of multiprong efforts by former FBI Director James Comey and New York Attorney General Letitia James to get their cases dismissed before trial.

At issue during Thursday’s arguments are the complex constitutional and statutory rules governing the appointment of the nation’s U.S. attorneys, who function as top federal prosecutors in Justice Department offices across the country.

The role is typically filled by lawyers who have been nominated by a president and confirmed by the Senate. Attorneys general do have the authority to get around that process by naming an interim U.S. attorney who can serve for 120 days, but lawyers for Comey and James note that once that period expires, the law gives federal judges of that district exclusive say over who can fill the vacancy.

But that’s not what happened in this instance.

After then-interim U.S. attorney Erik Siebert resigned in September while facing Trump administration pressure to bring charges against Comey and James, Attorney General Pam Bondi, at Trump’s public urging, installed Halligan to the role.

Siebert had been appointed by Bondi in January to serve as interim U.S. attorney. Trump in May announced his intention to nominate him and judges in the Eastern District unanimously agreed after his 120-day period expired that he should be retained in the role. But after the Trump administration effectively pushed him out in September, the Justice Department again opted to make an interim appointment in place of the courts, something defense lawyers say it was not empowered under the law to do.

Prosecutors in the cases say that the law does not explicitly prevent successive appointments of interim U.S. attorneys by the Justice Department and that, even if Halligan’s appointment is deemed invalid, the proper fix is not the dismissal of the indictment.

Comey has pleaded not guilty to charges of making a false statement and obstructing Congress, and James has pleaded not guilty to mortgage fraud allegations. Their lawyers have separately argued that the prosecutions are improperly vindictive and motivated by the president’s personal animus toward their clients, and should therefore be dismissed.

Tucker writes for the Associated Press.