The Justice Department reportedly is considering seeking a new indictment against James Comey, whose case was dismissed last week by a judge who said the prosecutor who brought the charges, Lindsey Halligan, was unlawfully appointed. The judge’s dismissal was “without prejudice,” meaning it wasn’t a permanent dismissal. It left open the possibility of new charges brought by a lawful prosecutor.
But if the DOJ secures another indictment against the former FBI director, that might only resume the tough time the prosecution was already having, even aside from the appointment issue. Comey had several pending pretrial motions that were unresolved at the point of the dismissal. Among them was his claim that the Donald Trump-demanded charges, secured by a former personal lawyer of the president’s without prior prosecutorial experience, were unconstitutionally vindictive.
On top of that issue and others, if Comey were to face a new indictment, then his lawyers could argue that the charges are barred by the statute of limitations, which Halligan barely beat when she obtained the indictment in September (over the objection of career prosecutors).
The timing issue surfaced in part of U.S. District Judge Cameron McGowan Currie’s ruling that dismissed Comey’s indictment on the grounds of unlawful appointment. It came up when the judge rejected Attorney General Pam Bondi’s attempt to retroactively salvage Halligan’s appointment in October. Currie wrote that Bondi’s bid was too late because the statute of limitations to charge Comey with lying in his 2020 Senate testimony had expired in September. In a footnote, the judge observed that, as a general matter, indictments pause the statute of limitations, but not if they’re invalid to begin with.
The DOJ had argued that Bondi could have personally obtained a new indictment under a federal law that gives prosecutors six months to refile dismissed charges, so her ratification of Comey’s existing indictment was therefore proper. Currie rejected that argument because that law applies when a case is dismissed, while Comey’s indictment was still pending when Bondi made her move.
Yet now that the case has been dismissed and the DOJ is reportedly considering charging Comey again, that federal law – 18 U.S Code 3288 – could come into play in litigation over the statute of limitations if he is charged anew.
The law gives prosecutors six months to bring new charges when a felony indictment is dismissed “for any reason after the period prescribed by the applicable statute of limitations has expired.” During litigation ahead of Currie’s ruling on the appointment issue, prosecutors highlighted that language – emphasizing “any reason,” which, the DOJ argued, “obviously includes a defective appointment.”
On the other hand, in addition to arguing there was no valid indictment in the first place, Comey’s lawyers have cited another part of that same law that they said should bar a new indictment. It says that new indictments aren’t allowed “where the reason for the dismissal was the failure to file the indictment … within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution.”
They highlighted the “some other reason that would bar a new prosecution” language to argue that a new indictment would be barred here, writing: “Using an illegal appointment to procure an indictment days before the statute of limitations expires … is precisely the type of ‘reason’ that must ‘bar a new prosecution.’”
So, if Comey is charged again, the DOJ would argue that the law plainly gives the prosecution more time, while he would argue that time has already run out because it’s as if the Halligan-secured indictment never existed and it would be unfair to give prosecutors what amounts to an end-run around the statute of limitations. The challenge Comey could face is that the law itself might provide for such an end-run. But the issue would need to be litigated more fully by the parties and decided by a judge examining it directly – if a new indictment comes. If it does, then the statute of limitations is just one issue on top of the existing unresolved claims that Comey had raised prior to the dismissal, saying nothing of the hurdle that the DOJ would face in proving the case beyond a reasonable doubt at trial, if the case made it that far. And unless the government succeeds in pressing its promised appeal of Halligan’s disqualification, reviving the case would require the normally simple step of getting past a grand jury, something that has proved difficult for the Trump DOJ in political cases. Judge Currie also dismissed the indictment Halligan brought against New York Attorney General Letitia James, which wouldn’t face the same statute of limitations argument if she’s charged again – though, like Comey, she had raised other unresolved pretrial arguments at the time of her dismissal that the DOJ would need to defeat to move a new case forward against her. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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