Ms Bondi has vowed to lodge an ‘immediate appeal’ against that dismissal, but so far none has been lodged. She wrote this in a statement on Monday declared that “Lindsey and our attorneys are simply doing their jobs: advocating for the Department of Justice’s positions…They do not deserve to have their reputations questioned in court for ethically advocating on behalf of their client. This Department of Justice will not tolerate undemocratic judicial activism.”
The interim United States attorney for the Eastern District of Virginia, Lindsey Halligan, secured the indictment of Mr. Comey on two counts of lying to Congress on September 25, five days before the five-year term expired. The allegations that Mr. Comey lied to Congress date back to September 2020 testimony about leaks within the FBI under his directorship.
The charges against Mr. Comey and New York Attorney General Letitia James came after the previous interim appointment in the Old Dominion, Erick Siebert, resigned following reports that he was reluctant to prosecute the two individuals, who are critics of Mr. Trump. Mr. Comey’s indictment came five days after President Trump wrote on social media: “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They are all guilty but nothing will be done. We can’t delay any longer, it is killing our reputation and credibility.”
Last month, a federal judge, Cameron McGowan Currie — an appointee of President Clinton — dismissed all charges against Mr. Comey and Ms. James after ruling that Ms. Halligan had been unlawfully appointed by Ms. Bondi. The government has since tried to secure a second indictment against Ms. James — bringing in a veteran federal prosecutor, Roger Keller, of Missouri, to handle the case — but last week a second grand jury balked at bringing an indictment.
One possible reason why the DOJ took swift action against Ms. James and has yet to attempt to revive the case against Mr. Comey is that any attempt to bail out the plaintiff would likely be immediately deemed illegal given the expiration of the statute of limitations. The bank fraud charges against Ms. James, which also date back to 2020, have a 10-year statute of limitations instead of the five imposed for lying to Congress.
Federal lawhowever, appears to allow a new charge to be filed after a case is dismissed after the statute of limitations has expired. New charges can be filed within “six calendar months” from the date the charge was dismissed, or 60 days after the appeal ends. Judge Currie wrote in a footnote to her decision to disqualify Ms Halligan that “an invalid charge … cannot serve to block the door of restraint as it swings shut.”
Judge Currie’s position is that while a case dismissed after the statute of limitations has expired may be refiled, this remedy is not available where the charge is found to have been defective from the outset. Mr Comey’s lawyer, Michael Dreeben – a veteran of the teams of special counsel Jack Smith and Robert Mueller – argued in court that “there was no indictment.” Ms. Halligan herself presented the case to the grand jury, a move that backfired when her nomination was declared invalid.
However, Judge Currie’s footnote is not a ruling, meaning it is not binding on future courts. Any appeal of her disqualification ruling – and ultimately the statute of limitations issue – will be to the Fourth U.S. Appellate Circuit. The law allowing charges to be refiled is worded this broadly: “whenever an indictment or information charging a crime is dismissed for any reason.”
That could mean the law could have a second chance for prosecutors, even in a case like Mr. Comey’s, where an indictment was dismissed. However, Judge Curie takes the position that when an “indictment is null and void, there is no legitimate condition upon which future charges can be attached.” However, her decision to throw out the accusers “without prejudice” means the government can file new charges – if it can overcome the statute of limitations issue.
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