Comey Indictment DISMISSED

Judge Currie has dismissed the indictment against Jim Comey without prejudice. What happens next?

Shortly after Trump installed Lindsey Halligan as interim US Attorney in the Eastern District of Virginia, she presented a case alone to a federal grand jury and handed up a (now questionable) charging document on two felony counts of lying and obstructing a Congressional investigation.

Among many motions to dismiss, Comey filed a motion to dismiss the charges on the grounds that Lindsey Halligan was not legally appointed, and since she’s the only one who signed the indictment, the charges should be dismissed.

Three other interim US Attorneys installed by trump have also been found to be unlawfully appointed, but because charges they brought were also co-signed by other Assistant US Attorneys, those charges against other parties were not dismissed. But because no other attorneys would sign the Comey indictment, Comey’s lawyers argued that these charges should be dismissed.

They also argued that the charges should be dismissed with prejudice, but the judge did not do that here, dismissing without prejudice. I’ll get to why in a moment.

The reason Judge Currie decided this matter and not a judge from the Eastern District of Virginia is that the entire bench recused from the case in the event that they’d have to hear cases from Halligan in the future. Judge Currie writes today:

Resolving Mr. Comey’s motion requires me first to decide whether Ms. Halligan was validly appointed as Interim U.S. Attorney under section 546 and the Appointments Clause. If the answer to that question is yes, I need not go any further, and Mr. Comey’s motion must be denied. But if the answer is no, and Ms. Halligan had no authority to present Mr. Comey’s indictment to the grand jury, then the question becomes, what remedy is appropriate? Should the indictment be dismissed? And if so, should the dismissal be with or without prejudice? I address these issues in turn, beginning with whether Ms. Halligan’s appointment was valid under section 546.

SECTION 546

Judge Currie writes:

In sum, the text, structure, and history of section 546 point to one conclusion: the Attorney General’s authority to appoint an interim U.S. Attorney lasts for a total of 120 days from the date she first invokes section 546 after the departure of a Senate-confirmed U.S. Attorney. If the position remains vacant at the end of the 120-day period, the exclusive authority to make further interim appointments under the statute shifts to the district court, where it remains until the President’s nominee is confirmed by the Senate. Ms. Halligan was not appointed in a manner consistent with this framework. The 120-day clock began running with Mr. Siebert’s appointment on January 21, 2025. When that clock expired on May 21, 2025, so too did the Attorney General’s appointment authority. Consequently, I conclude that the Attorney General’s attempt to install Ms. Halligan as Interim U.S. Attorney for the Eastern District of Virginia was invalid and that Ms. Halligan has been unlawfully serving in that role since September 22, 2025.

APPOINTMENTS CLAUSE

“[A]n officer can[not] lawfully exercise the statutory power of [her] office at all” unless she has been “properly appointed” under Article II. Collins v. Yellen, 594 U.S. 220, 266 (2021) (Thomas, J., concurring) (emphasis added). And here Ms. Halligan has not been appointed (1) by the President with the advice and consent of the Senate or (2) through a process Congress has authorized “by statute.” Kennedy, 606 U.S. at 804 (Thomas, J., dissenting) (“At the time of the framing, ‘by Law’ of course meant ‘by statute.’” (quoting Lucia, 585 U.S. at 254 (Thomas, J., concurring))). So an Appointments Clause violation has occurred.

So Halligan’s appointment violated Section 546 and the Appointments Clause of the Constitution.

The next question is what to do about that violation.

I conclude that all actions flowing from Ms. Halligan’s defective appointment, including securing and signing Mr. Comey’s indictment, constitute unlawful exercises of executive power and must be set aside. There is simply “no alternative course to cure the unconstitutional problem.” Trump, 740 F. Supp. 3d at 1303.

Notice she cites Trump’s classified documents case dismissal by Judge Cannon!

The judge then addresses Pam Bondi’s attempt to get into the DeLorean, fire up the Flux Capacitor, and retroactively appoint Halligan under different statutes:

I reject the Attorney General’s attempt to retroactively confer Special Attorney status on Ms. Halligan. Regardless of what the Attorney General “intended,” or “could have” done, the fact remains that Ms. Halligan was not an “attorney authorized by law” to conduct grand jury proceedings when she secured Mr. Comey’s indictment.

I have already concluded that Ms. Halligan’s original appointment was invalid and that the Attorney General’s attempt to retroactively bestow Special Attorney status on her was ineffective. As a result, the Attorney General “could not have authorized” Ms. Halligan, who was not an attorney for the Government at the time, to present Mr. Comey’s indictment to the grand jury on September 25.

The implications of a contrary conclusion are extraordinary. It would mean the Government could send any private citizen off the street — attorney or not — into the grand jury room to secure an indictment so long as the Attorney General gives her approval after the fact. That cannot be the law.

So what about the statute of limitations?

The Government responds that the Attorney General’s ratification was proper because she could have “personally obtain[ed] a new indictment” on October 31 “using [the] grace period” set forth in 18 U.S.C. § 3288.

That statute provides in part: Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information.

The problem with that is the indictment had not been dismissed. It was still pending. Thus, the Attorney General could not have invoked section 3288 “at the time the ratification was made.”

That brings us to the dismissal without prejudice.

Mr. Comey urges me to exercise my supervisory powers and dismiss his indictment with prejudice. A with-prejudice dismissal is necessary, he argues, to “vindicate the interests protected by the Appointments Clause” and to “deter the government from using unlawful appointments to effectuate retaliation against perceived political opponents.”

The Government, on the other hand, asserts that any dismissal should be without prejudice, for Mr. Comey “comes nowhere close to showing ‘flagrant misbehavior,’ ‘substantial prejudice,’ or the unavailability of a ‘lesser sanction,’” as required by Bundy.

Ultimately, I believe the Supreme Court’s Appointments Clause jurisprudence provides the answer to the with-or-without-prejudice question. In both Ryder and Lucia, the Court essentially unwound the actions taken by the unconstitutionally appointed officer and restored the affected party to the position the party occupied before being subjected to those invalid acts. I will do the same here. I will invalidate the ultra vires acts performed by Ms. Halligan and dismiss the indictment without prejudice, returning Mr. Comey to the status he occupied before being indicted.

Because this is dismissed without prejudice, that allows the DOJ to try to bring the charges again with a valid US Attorney, however, the statute of limitations has expired in this case. But, the government could try to bring it again under a savings provision - which allows a grace period for dismissed indictments - or they could appeal this ruling (which I imagine is already in the works.)

None of that can save them, however, from the myriad other fatal problems with the case.

You can read Judge Curries ruling here.

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~AG