'No legitimate peg': Judge questions whether Bondi's DOJ can refile Comey indictment after tossing out Halligan appointment

The Trump administration's apparent attempt to do an end run around long-standing procedures for appointing federal prosecutors in an effort to prosecute two high-profile political foes has failed — at least for now.

In two separate opinions issued concurrently on Monday, Senior U.S. District Judge Cameron Currie found that the appointment of novice prosecutor Lindsey Halligan to the top spot for the DOJ at the Eastern District of Virginia was unconstitutional and ordered that the federal indictments against former FBI director James Comey and New York Attorney General Letitia James be dismissed.

The judge further found that "[a]ll actions flowing from Ms. Halligan's defective appointment, including securing and signing Mr. Comey's indictment, were unlawful exercises of executive power and are hereby set aside."

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Similarly, Attorney General Pam Bondi's "attempts to ratify Ms. Halligan's actions were ineffective and hereby set aside," the judge added.

As Law&Crime has previously reported, Halligan's appointment — and her subsequent prosecutions of Comey and James — have been heavily contested. Halligan, lacking any prosecutorial experience, replaced former interim U.S. Attorney for the Eastern District of Virginia Erik Siebert. This came two days after the president posted a message directed to Bondi on Truth Social, bristling that "[n]othing is being done" about "guilty as hell" Comey, Democratic New York Attorney General Letitia James, and Sen. Adam Schiff, D-Calif. While previous federal prosecutors had not been able to justify pursuing James and Comey, Halligan did so — although her methods have been seriously questioned.

The false statement and obstruction indictment against Comey, who has since responded with his own claim of vindictive and selective prosecution, came shortly before the statute of limitations was set to expire — a reality that did not go unnoticed by Currie.

"Generally, '[t]he return of an indictment tolls the statute of limitations on the charges contained in the indictment,'" Currie wrote in a footnote. "'An invalid indictment,' however, 'cannot serve to block the door of limitations as it swings closed.'" While a "valid" indictment is insulated against the statute of limitations, in other words, "'if the earlier indictment is void, there is no legitimate peg on which to hang such a judicial limitations-tolling result,'" Currie wrote.

Comey's legal team seemed to take this footnote as a sign that the judge aligned with their position.

"The decision recognizes that the case was brought by someone who had no authority whatsoever to be the United States Attorney," Comey's attorney Patrick J. Fitzgerald said in a statement. "The decision further indicates that because the indictment is void, the statute of limitations has run and there can be no further indictment."

Although the indictment's dismissal comes after the statute of limitations has passed, under relevant federal law, the federal government may yet have another opportunity to pursue the case against Comey. A new indictment "may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information," the statute says. Alternatively, if the DOJ appeals the dismissal, it will have up to 60 days after the dismissal "becomes final," or, if no grand jury is in session at that time, within 6 months of a grand jury convening.

In Comey's case, Currie ultimately decided to dismiss his indictment without prejudice, despite Comey's argument that doing so is necessary to "deter the government from using unlawful appointments to effectuate retaliation against perceived political opponents."

Citing Supreme Court precedent that, according to Currie, "essentially unwound the actions taken by the unconstitutionally appointed officer and restored the affected party to the position the party occupied before being subjected to those invalid acts," the longtime judge opted instead to dismiss the indictment without prejudice.

"I will invalidate the ultra vires acts performed by Ms. Halligan and dismiss the indictment without prejudice, returning Mr. Comey to the status he occupied before being indicted," she wrote.

Currie maintained the same reasoning in dropping the indictment against James, who was accused by the Trump administration of bank fraud and making a false statement to a financial institution.

"I agree with Ms. James that the Attorney General's attempt to install Ms. Halligan as Interim U.S. Attorney for the Eastern District of Virginia was invalid," Currie wrote. "And because Ms. Halligan had no lawful authority to present the indictment, I will grant Ms. James' motion and dismiss the indictment without prejudice."

James' office issued a statement following the dismissal.

"I am heartened by today's victory and grateful for the prayers and support I have received from around the country," the statement said. "I remain fearless in the face of these baseless charges as I continue fighting for New Yorkers every single day."

A representative for the DOJ did not immediately respond to Law&Crime's request for comment.

At the end of her ruling, Currie appeared to explicitly direct the Trump administration to adhere to the rules that have long governed the appointment of top federal prosecutors.

"The power to appoint an interim U.S. Attorney for the Eastern District of Virginia pursuant to [federal law] lies with the district court until a U.S. Attorney is nominated by the President and confirmed by the Senate[,]" the judge wrote.

Matt Naham contributed to this report.