Comey Case Dismissed

Sharing my article in The Atlantic

Former FBI Director James Comey (Jonathan Ernst/Reuters)

On Monday federal district court judge Cameron Currie dismissed the indictments of former FBI director James Comey and New York Attorney General Letitia James. Judge Currie found that the appointment of Lindsey Halligan as the interim U.S. Attorney in the Eastern District of Virginia was unlawful, and therefore the indictments she obtained are invalid. This was just one of the many problems with the Comey prosecution, as discussed in my last post:

The Comey Prosecution is Imploding

You can read Judge Currie’s opinion dismissing the Comey case here.

Judge Currie dismissed the indictments without prejudice, meaning that in theory the government could re-indict the cases once a lawfully-appointed U.S. Attorney is in place. In Comey’s case, though, the statute of limitations expired just a few days after he was indicted. There is a federal statute, 18 U.S.C. 3288, that gives the government six months to re-indict a case if it is dismissed after the statute of limitations has run. But as Judge Currie discussed in footnote 21 of her opinion, that principle doesn’t apply where, as here, there was never a legal indictment in the first place. That means the statute of limitations should prevent prosecutors from obtaining a new indictment.

The government can appeal Judge Currie’s decision and almost certainly will. But if her dismissal stands, it looks like the Comey case will be gone for good. (The way the government charged the James case, they shouldn’t have the same statute of limitations issue.)

In some ways, this is the least embarrassing outcome for Halligan and the government. It avoids judicial findings on vindictive prosecution and all the misconduct by Halligan and the FBI discussed in my last post; there is no reason for the judge to rule on those motions now that the case is dismissed. The government can tie this up in a lengthy (and probably ultimately unsuccessful) appeal while blaming another “activist, deep state judge,” and put all their other serious problems with the case aside.

It would have been gratifying to see judicial findings on vindictive prosecution and government misconduct, to see the government held accountable. But of course, if you’re Comey, a win is a win and you’ll gladly take it.

When this decision came down, I was working on an article for The Atlantic about how the criminal justice system is serving as an effective check on Trump’s power. It included quite a bit about the Comey prosecution. It was originally slated for after Thanksgiving, but in light of the Comey news the editors decided they wanted to update the piece and publish right away — so that’s how I spent my Monday afternoon. I want to share a free link with all of you.

The One Place Trump’s Power Remains Constrained - The Atlantic

As I’ve written before, I think results like this are hopeful reminders about the limits of Trump’s power. As we move into the holidays, we can all use some hopeful news.

I wish you and yours the happiest of Thanksgivings.

All the best,

Randall