U.S. District Judge Cameron McGowan Currie sent shock waves through the Trump administration this week when she dismissed the criminal indictments against former FBI Director James Comey and New York Attorney General Letitia James.

Judge Currie ruled that the prosecutor who brought the cases, attorney Lindsey Halligan, was not lawfully appointed.

How does a person become a U.S. Attorney unlawfully?

Comey and President Donald Trump are political adversaries. Comey, the FBI director under Trump, had been critical of him, and he wanted Comey indicted. This past September, Erik Siebert, interim U.S. Attorney for the Eastern District of Virginia, was being pressured by the Trump administration to indict Comey. Seibert resisted, presumably because the U.S. Attorney's office felt the case lacked merit. He voiced concerns about the viability of the case and his office's memo declining prosecution.

Just days later, Trump said he wanted Siebert "out." Siebert resigned later that day. The following day on social media, Trump demanded Attorney General Pam Bondi appoint a replacement for Siebert and bring charges against Comey, New York Attorney General Letitia James, and Sen. Adam Schiff, D-Calif. Trump continued, "We can't delay any longer."

In came Halligan. She had no criminal law experience and was charged with indicting the former FBI director within a couple of days. Comey's indictment had to come before Sept. 30, 2025, or the statute of limitations would expire, and Comey could never be charged.

Halligan had a dilemma. No one in the office wanted to participate in the grand jury proceeding — no one in the office believed seeking an indictment against Comey had merit. Halligan sought the indictment herself, not a good idea if you are a novice prosecutor in a major case.

Comey's attorneys argued that the Trump administration had no legal authority to make the appointment of Halligan. The law "limits the total tenure of the Attorney General's interim appointments to 120 days" and therefore "precludes an additional appointment by the Attorney General after the expiration of that 120-day period."

Currie agreed and said the invalid appointment required the dismissal of Comey's case. She also dismissed James' case for the same reason.

"All actions flowing from Ms. Halligan's defective appointment," including securing and signing the indictments, "were unlawful exercises of executive power and are hereby set aside," she wrote.

The problems with Comey's indictment go beyond the unlawful appointment of Halligan. First, Halligan admitted that not all grand jurors saw the substituted indictment that resulted in two charges against Comey. Second, Halligan may have misinformed jurors that Comey could not invoke his Fifth Amendment right at trial.

The biggest problem is that the government may be unable to re-indict Comey. Much has been made of the language "without prejudice" in Currie's opinion. What that normally means is that the charges, indictment can be refiled. The statute that the Justice Department points to is 18 U.S. 3288, which provides that a felony indictment dismissed for any reason may be refiled within six months.

However, the statute further provides, "This section does not permit the filing of a new indictment or information where the reason for the dismissal was the failure to file the indictment or information within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution."

Judge Currie seems poised to find that an indictment from a prosecutor who was unlawfully appointed is really not an indictment at all and does not toll the statute of limitations. Currie made her position clear: "This case presents the unique, if not unprecedented, situation where an unconstitutionally appointed prosecutor, 'exercising power [she] did not lawfully possess,' ... acted alone in conducting a grand jury proceeding and securing an indictment."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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