Key Takeaways:
- The Justice Department may present a new indictment against James Comey to a grand jury as soon as this week.
- The previous cases against Comey and Letitia James were dismissed due to the interim US Attorney’s lack of authority.
- The Justice Department has 30 days to notify the court of its intention to appeal the ruling.
- Comey’s legal defense team may challenge a re-indicted case, arguing that the statute of limitations has run out.
- The Justice Department believes it may still revive the case under another law, allowing several months to charge Comey again.
Introduction to the Case
The Justice Department is considering presenting a new indictment against former FBI Director James Comey to a grand jury as early as this week. This development comes after the previous cases against Comey and New York Attorney General Letitia James were dismissed last week due to the interim US Attorney’s lack of authority. People familiar with the situation inside the Justice Department believe that whatever comes next may happen quickly, and that prosecutors will likely present new indictments against Comey and James to grand juries in the Eastern District of Virginia.
Background on the Dismissed Cases
The previous cases against Comey and James were dismissed after a judge found that interim US Attorney Lindsey Halligan didn’t have the authority of a prosecutor when the indictments were returned in late September and early October. Comey had previously pleaded not guilty to charges that he lied to Congress five years ago, while James pleaded not guilty to mortgage fraud-related charges. The dismissals of their cases have sparked a new wave of developments, with FBI Director Kash Patel stating that "multiple responses" could come as early as "right after Thanksgiving" in the dismissed case against Comey.
Possible Next Steps
Grand juries sit multiple times a week regularly in the Alexandria federal courthouse, and less frequently in Norfolk, where James’ charges were centered around. During an interview with the Epoch Times, Patel said that the FBI and the Justice Department have numerous options to proceed and are executing on all those options. He added that he would say "stay tuned for right after Thanksgiving and you’ll see multiple responses, in my opinion." The White House press secretary and the Attorney General have also stated that an appeal of the ruling is imminent, although the Justice Department hasn’t notified the court of its intention to appeal as of Monday afternoon.
Challenges to a Re-Indicted Case
Comey’s legal defense team has several ways lined up to potentially challenge a re-indicted case against him, if it were to be revived. Comey’s lead defense counsel, Patrick Fitzgerald, said in a statement last week that the judge’s decision to dismiss the case "indicates that because the indictment is void, the statute of limitations has run and there can be no further indictment." Comey’s team is likely to maintain that legal position going forward, arguing that any charges he might face related to his September 2020 congressional testimony would now come outside of the five-year window, called a statute of limitations, that the Justice Department had to bring a case.
The Justice Department’s Position
However, the Justice Department appears to believe it might still revive the case under another law that could allow several months to charge Comey again, essentially elongating the statute of limitations for Comey into spring 2026, sources have told CNN. As for the James mortgage fraud case, it too could be revived — and doesn’t face the same possible issues around a statute of limitations window closing. James’ lawyers were at the beginning stages of challenging the specifics of her indictment and would likely continue opposing any case that was brought under Halligan.
Legal Experts’ Perspectives
Some legal experts are closely watching exactly how the Justice Department moves forward, and the level of involvement Halligan would have in the cases, now that a trial-level judge said she had been unlawfully appointed. John Day, a Nashville defense lawyer and current president of the American College of Trial Lawyers, said that the Justice Department can reindict, but the question is who can do it. Day believes that the most legally sound move the Justice Department could make would be to have Halligan step down, as the current situation is a "procedural morass" that has created uncertainty.
