The Losing Isn’t Over for Trump’s Justice Department

The biggest question about President Donald Trump’s payback prosecutions of James Comey and Letitia James was not so much whether they’d fail but how. And now, much as common earthly bacteria foiled the alien invasion in War of the Worlds, the Comey and James cases have died (for the moment) for the most fundamental and unremarkable of reasons: The prosecutor who indicted them wasn’t actually a proper prosecutor in the first place.

Our (quasi) prosecutor in question is one Lindsey Halligan, attorney-at-law. Ordinarily, the president nominates and the Senate confirms all U.S. attorneys. But when the position is vacant, federal law empowers the attorney general to name a temporary replacement who can serve for up to 120 days; after that, the federal judges of that district choose an interim U.S. attorney. For a time, that all happened by the book in the Eastern District of Virginia: The Trump administration chose the conservative, experienced prosecutor Erik Siebert as temporary U.S. attorney; Siebert served out his 120 days; and the judges of that district chose Siebert to continue in that role.

All was fine — until Siebert resigned, pushed out by Trump and the administration largely because he refused to charge the bogus Comey and James cases.

Enter Halligan. In late September, Trump installed the devout political loyalist (who lacked an iota of prosecutorial experience) to replace Siebert. Essentially, the administration helped itself to a second 120-day appointment. Halligan promptly stumbled all over herself but managed to obtain indictments of both Comey and James. (This will have to replace the old saw about grand juries and ham sandwiches.)

But yesterday, federal district court judge Cameron McGowan Currie ruled that the Trump administration got it all wrong. (Judge Currie came in to handle the case from South Carolina because the usual Eastern District of Virginia judges were themselves involved in the original appointment of Siebert and hence had a collective conflict of interest.) Judge Currie found that the law does not allow a president to nominate multiple 120-day replacements. If it did, any president could avoid having to seek Senate confirmation of U.S. attorneys simply by re-upping his chosen temp every few months. Hence, Judge Currie concluded, Halligan improperly served as temporary U.S. attorney. And the indictments of Comey and James — which were signed by Halligan alone, given the refusal of actual prosecutors to join in — therefore are invalid.

With a subtle knife-twist, the judge cited United States of America v. Trump — the 2024 decision by Judge Aileen Cannon in Florida to dismiss the Mar-a-Lago classified-documents case against Trump because the special counsel, Jack Smith, was invalidly appointed. What went around came around.

The failure of Halligan’s appointment sits squarely at the intersection of malice and incompetence that has defined the Comey and James prosecutions from the start. Remember that Halligan became the temporary U.S. attorney solely because she was willing to charge these two silly cases — and then the administration’s bosses couldn’t even properly install her in that role.

It’s not entirely over yet, though both cases are circling the drain. The Justice Department already has announced it will appeal the dismissals. While Judge Currie’s rulings read as careful and meticulous, they’re not quite bulletproof. In fact, the judge acknowledged that the succession law at issue is “ambiguous.” While the judge laid out a convincing case to justify the dismissals — and other district courts have reached similar legal conclusions — it’s certainly possible that the conservative-leaning (and generally pro-executive) Fourth Circuit or Supreme Court reads the law differently to Trump’s benefit.

And because Judge Currie dismissed the cases “without prejudice,” prosecutors can try to reindict the cases. But if the DoJ takes this route, it’d likely moot its own appeals — which would mean it’s stuck with the lousy precedent set yesterday. And reindictments will be easier said than done.

First, the Justice Department must find an actual prosecutor (preferably, properly appointed) to handle the cases. While experienced professionals resigned rather than pursue the Comey and James matters, DoJ headquarters is stocked with Trump’s political loyalists, at least one of whom surely would be willing to sign on. And the Justice Department is currently trying an end run by naming Halligan a “special attorney” under the attorney general.

Even if the DoJ finds a prosecutor to handle the cases, it’s not entirely certain a new grand jury will choose to reindict. Recall that the original Comey grand jury rejected one count and barely approved the other two. The James case didn’t encounter the same resistance from the grand jury, but a mortgage-fraud charge based on a modest home worth $130,000, with an alleged intended loss amount of $18,000 (spread over decades), doesn’t exactly inflame the masses.

Second, the statute of limitations might well have run out against Comey. He gave the allegedly false Senate testimony on September 30, 2020, and was indicted originally on September 25, 2025 — just five days before expiration of the five-year limitations period. But now that we’ve hit late November, we’re more than five years out from commission of the charged crime. The DoJ might argue that the law allows it to reindict the case so long as the original indictment happened within the statute of limitations, but that’s a tricky uphill climb. (The James case, which alleges conduct through 2024, faces no statute-of-limitations issue.)

Even if one or both of the Comey and James prosecutions does find its way back to life, other defects abound. Both have compelling arguments for dismissal based on selective or vindictive prosecution; it’s not every defendant who can point to a presidential Truth Social post specifically calling for Attorney General Pam Bondi to prosecute his political enemies by name. A federal magistrate judge found last week that Halligan may have made improper statements to the grand jury, including a suggestion that Comey would have to take the stand at trial. And we learned late last week that Halligan made ministerial changes to the indictment that the grand jury had actually approved against Comey but never had the full grand jury vote on an amended version of the charging instrument. Rookie prosecutors make rookie mistakes, it turns out.

The Halligan-appointment issue is the leak that has sunk the ship for now. But even if this one gets patched over and dredged back up, other structural flaws remain. The Comey and James indictments might come back from this particular setback, in some form or other, but it’s only a matter of time before they’re sunk for good.