US judge dismisses cases against Comey and James, finds Trump prosecutor unlawfully appointed

By Alan Feuer and Devlin Barrett

WASHINGTON – A federal judge tossed out separate criminal charges against former FBI Director James Comey and New York Attorney General Letitia James on Monday (24), saying the loyalist prosecutor installed by President Donald Trump to bring the cases was put into her job unlawfully.

The twin rulings, by Judge Cameron McGowan Currie, were the most significant setback yet to the president’s efforts to force the criminal justice system to punish his perceived foes. The case dismissals also served as a rebuke to Attorney General Pam Bondi, who had rushed to carry out Trump’s orders to appoint the prosecutor, Lindsey Halligan, as the US attorney for the Eastern District of Virginia.

The dismissals, while embarrassing for the White House and the Justice Department, are unlikely to be the last word on an issue of constitutional authority that many legal experts expect could be appealed to the Supreme Court. And the way Currie rendered her decision left open the possibility that another prosecutor could refile the charges against both Comey and James.

Currie’s orders centre on Trump’s unorthodox decision to appoint Halligan to her prosecutorial position in an interim capacity, replacing his previous pick, who was also serving in a temporary role. Within days after assuming her new post, Halligan rejected the advice of the career prosecutors in her new office and moved single-handedly to indict both Comey and James, two of the president’s most reviled targets.

In her rulings Monday, Currie said it was unlawful to appoint two interim prosecutors in succession and dismissed the charges against Comey and James without prejudice.

The administration signalled Monday that it would appeal the judge’s ruling, rather than acquiesce to the death of two high-profile cases the president had demanded be brought.

White House Press Secretary Karoline Leavitt told reporters that the judge “was clearly trying to shield Letitia James and James Comey from receiving accountability” and added that the Justice Department would quickly appeal “this unprecedented action”.

The dismissal of charges without prejudice meant the government could also try to refile them, whatever the outcome of the ultimate legal fight over the appointment of Halligan, a former White House aide and personal lawyer to Trump.

In a statement, a lawyer for Comey, Patrick J. Fitzgerald, said that with the dismissal of the case against his client, “an independent judiciary vindicated our system of laws not just for Mr. Comey but for all American citizens”.

James’ lawyer, Abbe Lowell, said the court ruling showed Trump “went to extreme measures to substitute one of his allies to bring these baseless charges after career prosecutors refused. This case was not about justice or the law; it was about targeting Attorney General James for what she stood for and who she challenged.”

Currie’s ruling stems from a series of machinations that Trump undertook earlier this fall. Her legal rationale was based in part on the decision by another federal judge, Aileen Cannon, to dismiss an indictment against Trump over concerns about the appointment of Jack Smith as special counsel in that case.

In late September, he rushed to oust Halligan’s predecessor, Erik Siebert, the career US attorney in the Eastern District of Virginia, who had expressed concern that there was not sufficient evidence to indict Comey and James. The president then replaced Siebert with Halligan, who had no previous experience as a prosecutor.

When Halligan did the president’s bidding by hurrying to charge Comey and James, it was a generational erosion in the tradition of the White House keeping distance from the affairs of the Justice Department.

The indictment she secured against Comey charged him with lying to and obstructing Congress during testimony he gave in September 2020 about whether, as FBI director, he had authorized leaks to the media about sensitive political investigations. Not long after, James was charged with bank fraud and making false statements in loan documents for a home she had purchased in Norfolk, Virginia.

James said in a written statement that she was “heartened by today’s victory and grateful for the prayers and support I have received from around the country.”

The manner in which the judge dismissed the Comey indictment could now lead to a legal fight over whether the government can try to refile the charges with another grand jury.

Comey was indicted just days before the five-year statute of limitations was set to run out on any charges stemming from his congressional testimony. His lawyers and a magistrate judge have said the statute has now expired, meaning charges could not be refiled.

Government prosecutors, however, have argued in court that the statute has not expired because the clock was essentially paused when the indictment was returned. Comey’s legal team signalled Monday that it was likely to fight any attempt to revive the case, insisting that the statute of limitations had run out.

Currie said that Trump and his attorney general, Bondi, had circumvented the law through the manner in which Halligan was elevated to oversee one of the country’s most important federal prosecutors’ offices.

The judge noted that both Halligan and Siebert had been serving in an interim capacity.

But the attorney general is permitted to appoint only one interim US attorney to serve for a temporary 120-day period, Currie noted. The law does not permit the appointment of successive interim prosecutors, the judge said, or else the White House could simply keep installing pliant people in powerful positions and get around the constitutional requirement for the Senate to confirm them.

Currie wrote that if she did not dismiss the indictments, the consequences to the criminal justice system would be enormous.

“It would mean the government could send any private citizen off the street — attorney or not — into the grand jury room to secure an indictment so long as the attorney general gives her approval after the fact,” she wrote. “That cannot be the law.”

The decisions also had a ripple effect for the other federal cases within the Eastern District of Virginia. Prosecutors in Halligan’s office were notified Monday afternoon by supervisors to use the name of her deputy in their court filings instead of hers. That change is unlikely to affect the viability of the rest of the office’s cases, however.

Patrick Cotter, a former federal prosecutor now in private practice in Chicago, said the judge’s rulings were not particularly surprising.

“The rationale the judge puts forward as to why this was an unconstitutional appointment is pretty sound; it’s just logic,” he said. Cotter said dismissing the charges “without prejudice,” meaning the charges could be refiled with another grand jury, gave prosecutors options to try to revive the cases.

“Under current federal law, when an indictment is dismissed, the government has six months to try to refile charges, and it may be even longer because of appeals,” he said.

Cotter said the rulings would probably put on hold other legal fights over whether the James and Comey cases were vindictive prosecutions of political foes, but those could be revived if the administration’s appeal proved successful.

Such challenges, based on the argument that someone has been unfairly prosecuted for political or personal reasons, are rarely successful in court. But in these cases, Trump had publicly demanded charges after career prosecutors had looked at the evidence and said it did not rise to a determination of criminal conduct.

Currie, an appointee of President Bill Clinton who normally sits in South Carolina, was assigned to hear the question of Halligan’s appointment after the local federal judges were forced to step back to avoid any appearance of conflict in deciding on the fate of the US attorney they routinely deal with.

Other federal judges have already ruled that Trump’s Justice Department unlawfully used similar procedural manoeuvres to put loyalists in place at three other US attorneys’ offices. Those include Alina Habba, who was put in charge of the US attorney’s office in New Jersey; Sigal Chattah, who was named the acting US attorney for Nevada; and Bilal Essayli, whom Trump put in the top job at the US attorney’s office in the Central District of California.

But Halligan’s involvement in the James and Comey cases was in many ways unique. In both matters, she appeared alone in front of the grand juries that returned indictments and was the sole prosecutor to have formally signed the charging documents. Because no other colleagues joined her in presenting to grand juries, Currie ruled that the indictments she secured were invalid.

Although the charges against Comey and James were brought separately, their lawyers joined forces in challenging Halligan’s appointment.

-New York Times