After the shipwreck
Five Questions in the Wake of the Comey and James Dismissals
Predictable though they may have been, the dismissals of the indictments of James Comey and Letitia James were still thunderous. Judge Cameron McGowan Currie held that Lindsey Halligan’s appointment as U.S. Attorney violated the statutory scheme Congress created to govern vacancies in federal prosecutorial offices. Her decision brought to a crashing halt the most corrupt actions yet undertaken by the Trump-Bondi Justice Department and left DOJ staring at wreckage it now must somehow navigate.
Currie’s analysis was meticulous. She emphasized that Congress had constructed a “detailed statutory scheme”—a sequence of default rules, limits, and checks designed to prevent the kind of end-run the administration attempted here. After an initial 120-day interim appointment expires, the baton passes to the district court, which may appoint a temporary U.S. Attorney who serves until Senate confirmation. That 120-day clock had already been exhausted by Eric Siebert, the career prosecutor—and Trump’s previous choice to head the office—fired for refusing to pursue a political reprisal case against Comey.
The government’s contrary theory, Currie wrote, would turn the structure “on its head,” letting a President indefinitely cycle unconfirmable loyalists through contrived “acting” or “interim” posts. Currie also found a separate Appointments Clause violation. The clause permits Congress “by law” to provide for appointment of inferior officers (such as U.S. Attorneys), but Halligan’s extra-statutory position was not created by law. And Bondi’s late-filed “ratification,” purporting to retroactively appoint her to a different role, was meaningless, since Halligan was never lawfully in office.
Moreover, even for the most fervent unitary executive jocks, the presence of the contrary appointment power in the Constitution itself swats away the claim that Congress’s scheme violates Article II.
Because Halligan was never validly appointed, every act she purported to take as U.S. Attorney was a legal nullity. Her signature on the indictments was that of an unrecognized outsider; it might as well have read “Santa Claus.” No grand jury ever received a lawful presentation; no indictment was properly returned. Dismissal was the only lawful remedy.
Currie’s reasoning echoes that of other courts that have analyzed similar attempts by the Administration to evade the appointments legal regime, but she went further in showing how the administration’s maneuver would have let the Executive usurp powers Congress explicitly reserved for itself. It was a legally and morally condign response to an effort to rush a novice into office to deliver on Trump’s demand to indict his adversaries.
White House spokesperson Karoline Leavitt told reporters within hours of the decision that the DOJ would appeal the dismissals “very soon,” and Bondi issued a similar statement. The sheer speed of the announcement underscores that the White House’s political machinery has overtaken the DOJ’s professional function: by law and longstanding practice, only the Solicitor General can approve this sort of appeal, and the process would typically take several days at a minimum.
The decision to file an appeal puts in play a series of thorny questions—some legal, some strategic, all complicated by Trump’s insistence on seeing Comey and James in the dock. Here are five of the most important.
1. Does Judge Nachmanoff Still Have Comey’s Motions Before Him?
Not in any meaningful sense.
Judge Michael Nachmanoff had been weighing motions to dismiss, including a powerful selective- and vindictive-prosecution challenge, but there is now no indictment to apply them to and the other matters now go dormant. Moreover, the filing of the appeal serves to transfer jurisdiction over the case – the whole case – to the Fourth Circuit, which will literally take possession of the record.
If the Fourth Circuit reverses Currie, the case returns in full force. And even with a new indictment (see below), Comey’s selective-prosecution arguments return at full strength, because the chain of causation—Trump’s animus dictating the charging decision—would not be broken by swapping prosecutors.
Other issues would fall away. Halligan’s grand-jury missteps, including what the magistrate judge called serious misstatements of law, would disappear with a superseding indictment. That is one small silver lining for Halligan: a redo would erase the most embarrassing moments of her brief, disastrous tenure.
2. Can Halligan be reappointed to the job?
No—neither legally nor politically.
Under § 546, once the Attorney General’s 120-day appointment expires, only the district court may appoint a temporary U.S. Attorney until Senate confirmation. That ship sailed long ago. The district judges have shown no willingness to appoint Halligan. The only remaining avenue is Senate confirmation—a virtual impossibility since Virginia’s two Democratic senators would have to return their “blue slips” on her and since 50 Senators would need to vote to confirm notwithstanding Halligan’s spectacular flameout
Nor can DOJ game the Federal Vacancies Reform Act by naming her “First Assistant” and elevating her. Although the FVRA’s 90-day rule technically applies only when the President nominates the same person to the permanent job, the statute’s other limits—and Currie’s reasoning—foreclose any such maneuver. Halligan never served as First Assistant, cannot be retroactively placed in that role, and cannot lawfully serve as Acting U.S. Attorney under the FVRA even under a creative title shuffle.
Attempting to keep her in her position during an appeal also would be a huge roll of the dice. So long as Currie’s decision stands, Halligan is a stranger to the office, and every action of hers is invalid. To reinstate Halligan, the Fourth Circuit would have to reverse outright. Nor is a stay feasible, as in the Habba case. There is nothing to stay, just a decision on the merits to review. And each day Halligan remains associated with these matters increases the danger that any other cases she touches would be nullified. Look for her at best to be re-assigned to a different position in the office, but not one exercising the responsibilities of the United States attorney, which the courts would see as just another attempt to run around § 546.
3. Who can take over the Comey prosecution—and who wants to?
Under Currie’s ruling, only the district court may appoint the next acting U.S. Attorney for EDVA. That person would serve until the administration confirms a nominee—a process guaranteed to draw intense scrutiny.
The Administration could still fight that battle, for example by firing anyone the district court chooses. It did that in New Jersey in the case of Alina Habba, the legality of whose appointment is now before the Third Circuit. But that’s a sideshow to the immediate question of next steps in the Comey and James prosecutions.
In theory, even as the appeal is pending, DOJ could seek a superseding indictment signed by someone other than Halligan (or do the same after an affirmance by the court of appeals). That would be a highly unusual step that would signal lack of confidence in the appeal to the Fourth Circuit.
What’s more, no one inside EDVA appears eager to be associated with this fiasco. Halligan had to recruit two outside lawyers because career prosecutors refused involvement. One of them—Tyler Lemons—argued the case before Nachmanoff and emerged badly bruised. Perhaps he would be willing to step up to full ownership of the quagmire. But most ambitious prosecutors would be unlikely to volunteer to lead a politically driven, legally infirm case that has already embarrassed the Department. Someone will eventually be pressed into service, but the deep reluctance across the office speaks volumes.
4. Did the statute of limitations already run on Comey—and can § 3288 save the day?
I think that this is the administration’s Achilles’ heel.
Comey’s indictment was returned just days before the five-year statute of limitations expired on the 2017 testimony at issue. With Currie deeming the indictment a legal nullity, the question is whether a new indictment—filed now that the limitations period has run—can “relate back” under 18 U.S.C. § 3288.
Many accomplished lawyers think § 3288 applies. I think the better reading of the cases is that the provision does not. § 3288 permits superseding an indictment only when the original indictment was validly returned and later dismissed for a technical defect. A significant body of case law holds that a void indictment—because the prosecutor lacked authority or the grand jury never received a lawful presentation—cannot toll the statute. As one court put it: “An invalid indictment cannot serve to block the door of limitations as it swings closed.”
That said, some courts have taken a broader view, and at least one court of appeals has permitted reindictment after dismissal of an indictment deemed a nullity. The Fourth Circuit has not spoken. But given Currie’s analysis, the statute-of-limitations issue now looms as Comey’s ultimate insurance policy: an additional assurance that this case will never reach trial.
5. What happens now to Letitia James?
James’s posture mirrors Comey’s, with one major difference: her charges have longer limitations horizons, which gives DOJ more maneuvering room. But her selective- and vindictive-prosecution claims are, if anything, even stronger. Trump’s animus toward James is deeper and more public. If that animus was the “but-for cause” of the indictment—an argument that resonated at the Comey hearing—then the Due Process Clause requires dismissal regardless of the evidence.
If the administration brings a new indictment only to lose on vindictive-prosecution grounds, the ruling would be a far more damning rebuke of Trump and Bondi than Currie’s statutory holding.
Pam Bondi now faces the most delicate strategic choice of her tenure. An appeal is virtually certain; the administration cannot allow such a sweeping rebuke to stand unchallenged, and it will argue that Currie read the vacancy statutes too rigidly. But an appeal carries political costs. As long as the cases remain dismissed, Trumpworld absorbs a symbolic defeat; yet as long as Comey remains theoretically reprosecutable, they retain the political utility of a continuing cloud.
Reviving the prosecutions through a superseding indictment—particularly in James’s case, where timing is more forgiving—is no better. Even with a properly appointed prosecutor, such an indictment would immediately run into the selective- and vindictive-prosecution motion waiting in the wings. In Comey’s case, the statute of limitations now stands as an independent, and likely fatal barrier. The terrain has shifted so sharply against the government that any renewed effort to prosecute Comey would amount to reopening a case already structurally doomed.
Currie’s ruling has left these prosecutions in ruins. The administration can, and says it will, appeal. It also can attempt to supersede. In all events, the structural defects that Judge Currie identified—statutory, constitutional, and institutional—remain. The cases that began as instruments of political reprisal have become cautionary tales about the fragility of prosecutorial power when bent to partisan ends.
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Thank you so much for your timely and clear-sighted explanations of this corrupt administration's actions.
Thanks, Harry. Assuming that the DOJ does re-indict James or even Comey, wouldn't that just bolster the vindictive prosecution claim? . The scenario in which those claims are most likely to be granted is this one -- the prosecution loses a point on appeal and then re-indicts on the same or more serious charges.