Yesterday, Judge Cameron McGowan Currie tossed the Trump administration’s slapdash effort to criminally prosecute former FBI Director James Comey, noting that the purported U.S. Attorney behind the prosecution had all the legal authority of three raccoons in a trench coat. Alas, the role of “Kinda Sorta Interim-ish U.S. Attorney for the Eastern District of Virginia,” is not so much “real,” with the statutory authority provided to the actual interim U.S. Attorney having expired months ago. Shuffling lawyers in the top job, Judge Currie observed, cannot reset the 120-day cap on staffing a U.S. Attorney’s Office with a placeholder or the executive could keep swapping out cronies ad infinitum to permanently avoid the constitutional requirement for Senate confirmation.
With Halligan proving more confident than the law or her own competence could support, Judge Currie found herself with no choice but to ditch both the case against Comey and the equally (pun intended) trumped up charges against current NY Attorney General Letitia James.
While the dismissals were without prejudice, it likely closes the door on Comey’s case, since the whole reason Halligan scrambled to cobble together an indictment that the grand jury never voted upon was the ticking clock of the statute of limitations that would turn the allegations against Comey into pumpkins that week. And now that indictment — which was already doomed because of the grand jury screwup — is void from jump because Halligan lacked any more authority than a random person off the street, and the statute of limitations has definitively closed.
But MAGA social media still has hope:
There’s a six-month extension! See, it says “for any reason” right there! Now, even though this case would’ve been time-barred within hours of the flawed indictment, the government gets another half a year to get its act together. Assuming they can convince the Senate to confirm someone dumb enough to bring the case.
Except… no.
Despite the hope they’re pouring into this “for any reason” language, the problem facing the government is that Judge Currie didn’t “dismiss” the indictment so much as declare that there never was an indictment in the first place. As she explains in footnote 21, even though “fake prosecutors” are — mercifully — not something the justice system historically dealt with very often, we actually do have caselaw covering how to handle this specific six-month extension statute in light of a void indictment:
Generally, “[t]he return of an indictment tolls the statute of limitations on the charges contained in the indictment.” United States v. Ojedokun, 16 F.4th 1091, 1109 (4th Cir. 2021). “An invalid indictment,” however, “cannot serve to block the door of limitations as it swings closed.” United States v. Crysopt Corp., 781 F. Supp. 375, 378 (D. Md. 1991) (emphasis in original); see also United States v. Gillespie, 666 F. Supp. 1137, 1141 (N.D. Ill. 1987) (“[A] valid indictment insulates from statute-of-limitations problems any refiling of the same charges during the pendency of that valid indictment (that is, the superseding of a valid indictment). But if the earlier indictment is void, there is no legitimate peg on which to hang such a judicial limitations-tolling result.” (emphasis in original)).
Here, the statute of limitations collapsed before any government official with legal authority even tried to get an indictment. The indictment doesn’t even exist.
This is the reading Comey’s lawyers endorse, and it’s the only one that makes any sense. The alternative would incentivize the government to hire an intern off Fiverr to turn in a fake indictment the day before the limitations period runs to avoid the law. Perhaps fittingly, the alternative reading exhibits the same core bad faith as repeatedly stacking “interim” appointments to avoid a statute capping the role at 120 days. Just as it can’t be the law that the executive can forever shuffle lawyers to escape the Senate’s constitutional role, they can’t constantly file void documents to prolong the statute of limitations just by slapping the word “indictment” on them.
Earlier: Lindsey Halligan Manages To Lose Two Cases At Once, Which Is Honestly Impressive
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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