What's Next in the James Comey and James Court Battles?

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A pair of well-known opponents of President Trump achieved significant court wins on the start of the week when a US judge dismissed the government's charges against them.

For weeks since their indictments, ex-FBI chief James Comey and New York Attorney General Letitia James have argued fiercely that they are not guilty, asserting that the administration and DOJ are merely targeting them for retaliation.

US District Judge Cameron Currie dismissed the charges in their cases due to prosecutor Lindsey Halligan's improper assignment as US attorney. But she also left the door open for the government to try again.

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Comey admitted that possibility after the ruling, stating he thinks the former president will probably come after him once more.

And White House spokeswoman Abigail Jackson appeared to agree: This will not be the final word on this issue.

But the DOJ faces steep hurdles to successfully prosecute both after this defeat, and experts hesitate to forecast what could happen next due to the unprecedented circumstances of the cases.

It feels to me like unexplored legal ground, said Kay Levine, Emory University School of Law professor.

Might the justice department challenge the ruling?

The Department of Justice can challenge the judge's decision before a federal appeals court. In this instance, that would be the Fourth Circuit Appeals Court.

US Attorney General Pam Bondi signaled she would take this route, pledging to use all available legal action, including an immediate appeal.

In other cases, the former administration has strongly challenged unfavourable rulings, taking cases from trial courts and sometimes fast-tracking its petitions up to the US Supreme Court.

Attorney Abbe Lowell, an attorney representing James, vowed to continue to challenge any further politically driven indictments through all legal avenues.

In the event of an appeals process, the DOJ probably would have its own attorneys argue the case, making Halligan's involvement in the appeal uncertain.

Could there be fresh indictments?

The federal prosecutors accused Comey with making false statements to lawmakers and obstructing justice. Federal prosecutors charged Letitia James with financial fraud and making false statements to a financial institution.

Each entered not guilty pleas. In addition to arguing Halligan was unlawfully appointed, both also claimed to be victims of vindictive prosecution.

With the original indictments thrown out (though, of course, appeals could change that), the DOJ might try to assemble new grand juries and secure new indictments.

Based on my analysis, a different attorney could bring James' case to a new grand jury and secure a fresh indictment, said Ms Levine.

But John Day, president of the American College of Trial Lawyers, said it could be a complex process – certainly in the Comey matter.

It's clear that it will be strongly disputed, whether Mr Comey's case can be recharged if a lawfully appointed prosecutor is appointed and is able to secure an indictment.

He described the tangle of attorneys, courts, and legal filings involved as a procedural morass with no easy solutions.

It might be harder for the DOJ to try to file the identical accusations against Comey.

A key issue is the statute of limitations – the time frame that prosecutors had to charge Comey for these particular claims – which ended at the close of September. However, the dismissal of the charges would activate a six-month grace period for the justice department to refile the case.

Still in that situation, his lawyers said it plans to argue the government is past the deadline.

The decision further indicates that since the indictment is void, the time limit has expired and there can be no further indictment, lawyer Patrick Fitzgerald said on Monday.

What is the fate of Lindsey Halligan?

In the pair of rulings on the charges against James and Comey, Judge Currie was blunt: Halligan was wrongly appointed.

Judge Currie wrote in the James ruling that the Attorney General's attempt to appoint Ms. Halligan as Acting US Attorney for the Virginia Eastern District was invalid.

As a result, she lacked legal power to file the charges, she wrote.

Federal prosecutors are nominated by the president and require Senate approval. US laws regulate how individuals can be appointed on a interim basis, but Judge Currie found that Halligan's appointment had breached these laws.

That leaves Halligan's role on subsequent cases against both individuals, again, unclear.

The decision might also raise doubts on other cases Halligan has prosecuted in the Eastern District of Virginia where she serves.

But Attorney General Bondi said on Monday that she made Halligan a special US attorney and praised her work as excellent.

The White House stood by its stance that Halligan was lawfully appointed, press secretary Karoline Leavitt told reporters on Monday.

Pamela Wood
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