Doj Deciding Whether To Seek New Comey, James Indictments

The Justice Department is quietly mulling whether to seek new indictments against former FBI Director James Comey and New York Attorney General Letitia James, a gamble to salvage the cases against two of President Donald Trump’s perceived political foes.

A week after a federal judge threw out both cases — prompting a vow by the White House and Justice Department to quickly appeal — federal prosecutors have taken no public steps to revive the cases. But two people familiar with the cases, who spoke on condition of anonymity to describe ongoing internal deliberations, said the department is strongly considering forgoing an appeal and instead asking one or more grand juries to re-indict Comey and James.

Such a move could be politically fraught. A new grand jury could decline to greenlight charges against Comey or James, risking Trump’s ire and another embarrassing blow after the Justice Department has faced intense scrutiny for its handling of the cases.

The ruling from U.S. District Judge Cameron Currie last week was a particularly pointed snub of Trump because it rejected his gambit to install one of his former criminal defense lawyers, Lindsey Halligan, to bring the cases after other prosecutors refused to seek the politically charged indictmentsthe president demanded.

“We’ll be taking all available legal action, including an immediate appeal,” Attorney General Pam Bondi told reporters last week, hours after Currie’s decision disqualifying Halligan and tossing the cases. Bondi’s comments echoed an earlier statement that day from White House press secretary Karoline Leavitt promising an appeal “very soon.” So soon, she told reporters, that DOJ might have filed it already.

A Justice Department spokesperson did not respond to requests for comment. An attorney for Comey, Patrick Fitzgerald, and a spokesperson for James declined to comment. Lawyers for the pair have said the cases lacked merit and amounted to a vindictive prosecution against their clients. Both Comey and James pleaded not guilty to the charges against them.

One reason the Justice Department may be slow-walking its next move is the fact that Halligan isn’t the only Trump-backed prosecutor tossed by the courts in recent weeks. On Monday, the 3rd Circuit Court of Appeals upheld a ruling disqualifying Alina Habba, another former Trump personal lawyer, from continuing to act as New Jersey’s U.S. attorney. That ruling could inform the department’s next steps, although the circumstances of their appointments are somewhat different.

The lack of any appeal filing in the Comey or James cases has led some legal experts to surmise that in lieu of an immediate appeal DOJ officials could seek to cure the flaws in the earlier indictments in a number of ways: Halligan could re-present the cases to the same or another grand jury not as an acting U.S. attorney but a “special attorney” appointed by Bondi; officials could assign other prosecutors to present the evidence along with her; or officials could select a new set of prosecutors do it.

One legal analyst said those options may be successful at re-leveling the mortgage fraud charges against James, the New York attorney general, but is unlikely to work to resurrect the case against Comey, the former FBI director charged with lying to and obstructing the work of a Senate committee. The statute of limitations to prosecute Comey ran out five days after Halligan brought charges against him.

“For Attorney General James, there’s no problem re-indicting here,” said Gene Rossi, a former senior federal prosecutor in the eastern Virginia office Halligan was tapped to run. “For Comey, there’s no hook. … For the Comey case, I think it’s gone.”

Paperwork initiating an appeal is not complex and doesn’t require legal argument. It’s typically a one-page notice that effectively elevates a case from the district court to the court of appeals, in this instance the Richmond, Virginia-based 4th Circuit. Such steps technically require the approval of Solicitor General D. John Sauer, which prosecutors have often obtained within a day or less. Under court rules, prosecutors have 30 days from the dismissal to file an appeal.

Former prosecutors said the delay in any appeal may be intended to allow officials to consider a series of complex strategy questions raised by re-indicting rather than simply appealing Currie’s ruling that Halligan wasn’t properly appointed.

An effort to bring new indictments could give Halligan the chance to fix some alleged errors with her initial presentation to the grand jury in the Comey case, whichjudges seized on in earlier hearings. The safest route to new indictments would involve using other grand juries that didn’t receive the earlier presentations, but that also creates the possibility that the cases fizzle if the new grand juries refuse to indict. That could be a tough development to explain to Trump.

Following Halligan’s presentation of the Comey case to an Alexandria, Virginia-based grand jury in September, the jurors took the rare step of rejecting one of the three felony charges she proposed. The other two charges were approved with only 14 affirmative votes, just two more than the minimum to indict.

While a different set of grand jurors could be more receptive to the charges, they could also be more skeptical.

And even if a grand jury chooses to re-indict Comey, the statute of limitations issue could sink the revived case. Prosecutors have argued that a federal law gives the government an extension of six months or more when a judge dismisses an indictment, but Comey’s lawyers have disputed that timeline.

Currie seemed to side with Comey’s defense on that issue, but it wasn’t essential to her ruling and it’s unclear precisely when the statute-of-limitation extension applies. Rossi said he doesn’t think prosecutors are entitled to the extension when the original indictment wasn’t valid to begin with.

“Whatever document came from that grand jury was meaningless,” Rossi said. “You can't supersede something that doesn't exist. If there's no time left in the statute of limitations, they're out of luck when it comes to Comey. … If they go that route and try to supersede or refile the indictment against Comey, they're going to lose.”

While the department might be forgoing an immediate appeal by re-indicting the cases, prosecutors would likely be able to pursue arguments at the appeals court if lower court judges again dismiss the cases or exclude important evidence. Officials might also decide to re-indict one case, while appealing Currie’s ruling in the other one.

It’s unclear whether DOJ will seek to recruit other prosecutors to bring the charges, sidestepping concerns about the propriety of Halligan’s continued involvement in the cases, or simply have the line prosecutors from other districts who agreed to take on the Comey and James cases appear with Halligan before the grand jury.

Bondi said last week she has full confidence in Halligan and she has all the legal authority she needs to continue to pursue Comey and James.

“She is in court and she can fight in court just like she was,” Bondi said.