DOJ Seeks to Revive Dismissed Cases Against Former FBI Chief Comey, New York AG James

The Department of Justice (DOJ) Monday appealed a federal judge’s dismissal of its criminal cases against former FBI Director James Comey and New York Attorney General Letitia James (D).

The department’s appeals mark another attempt to resuscitate its political prosecutions against Comey and James — two of President Donald Trump’s longtime enemies. Both cases were initiated shortly after Trump publicly ordered Attorney General Pam Bondi to go after his foes more aggressively.

In November, U.S. District Judge Cameron Currie tossed the cases after finding that Lindsey Halligan, who Trump had selected to prosecute Comey and James, was illegally appointed as acting U.S. attorney for the Eastern District of Virginia.

Currie determined that Halligan, one of Trump’s former personal attorneys, could not have brought charges because the president and Bondi circumvented vacancy laws to appoint her.

Though the DOJ immediately vowed to appeal after Currie’s ruling, it only did so after it made separate attempts to bring the Comey and James cases back to life.

After the dismissals, federal prosecutors tried to re-indict James on the same initial mortgage fraud allegations twice, but grand juries rejected both attempts. 

Grand jury rejections are an astonishingly rare occurrence. The DOJ receiving two in a row strongly suggested the evidence it has against James is not sufficient to establish probable cause that she committed a crime.

A federal judge also dealt a significant blow to the department’s bid to reindict Comey by locking down its access to his former lawyer’s emails and data — evidence that appears to have been central to its original claim that Comey lied under oath while testifying before Congress.

The department likely faces long odds in challenging Currie’s unlawful appointment determination in the Fourth Circuit Court of Appeals, as multiple appeals courts have already upheld similar district court rulings against Trump-appointed acting U.S. attorneys. 

A Third Circuit Court of Appeals panel earlier this month disqualified Alina Habba, another former personal attorney of Trump’s, as acting U.S. Attorney for New Jersey. She later resigned from the role.

However, weeks after Currie’s ruling, the DOJ has continued to refer to Halligan as the top federal prosecutor in eastern Virginia. Often, the department has even implied she’s a full U.S. attorney by dropping “acting” or “interim” from her title — even though she was never confirmed by the Senate or federal judges.

Halligan’s continued claim to the post and the DOJ’s shell game over her title has frustrated judges in the Eastern District of Virginia. Several of them have struck her name from documents or added asterisks citing the unlawful appointment ruling against her. 

One even asked DOJ lawyers why Halligan didn’t follow Habba’s lead and resign.

Trump tapped Halligan to lead the Eastern District of Virginia as a temporary U.S. attorney after pressuring her predecessor, Erik Siebert, out of the role for raising concerns about the legal viability of bringing charges against Comey and James.