Buh Bye Lindsey!
Judge Cameron Currie has issued her ruling in Jim Comey and Letitia James’ efforts to disqualify Lindsey Halligan as unlawfully appointed.
In both cases, she dismissed the indictments without prejudice.
On September 25, 2025, Lindsey Halligan, a former White House aide with no prior prosecutorial experience, appeared before a federal grand jury in the Eastern District of Virginia. Having been appointed Interim U.S. Attorney by the Attorney General just days before, Ms. Halligan secured a two-count indictment charging former FBI Director James B. Comey, Jr. with making false statements to Congress and obstructing a congressional proceeding.
Mr. Comey now moves to dismiss the indictment on the ground that Ms. Halligan, the sole prosecutor who presented the case to the grand jury, was unlawfully appointed in violation of 28 U.S.C. § 546 and the Constitution’s Appointments Clause. As explained below, I agree with Mr. Comey that the Attorney General’s attempt to install Ms. Halligan as Interim U.S. Attorney for the Eastern District of Virginia was invalid. And because Ms. Halligan had no lawful authority to present the indictment, I will grant Mr. Comey’s motion and dismiss the indictment without prejudice.
But she also ruled that the judges in EDVA will choose the US Attorney until such time as Trump can get one confirmed by the Senate, which might, in theory, lead Erik Siebert to be reinstated.
The power to appoint an interim U.S. Attorney for the Eastern District of Virginia pursuant to 28 U.S.C. § 546 during the current vacancy lies with the district court until a U.S. Attorney is nominated by the President and confirmed by the Senate under 28 U.S.C. § 541.
This decision will be appealed. And given that Currie stopped short of dismissing the indictment with prejudice, it may not moot Comey’s other challenges to his indictment (or James’, which are not yet fully briefed).
Update: This language seems to prohibit Bondi from trying to reindict Comey again, but does not moot his other legal challenges.
The Government also fails to meet the second requirement for a valid ratification, i.e., that the principal must have been able “to do the act ratified . . . at the time the ratification was made.” FEC v. NRA Pol. Victory Fund, 513 U.S. 88, 98 (1994) (emphasis in original) (internal quotation marks omitted). In NRA Political Victory Fund, the Supreme Court rejected the Solicitor General’s attempt to ratify the filing of an unauthorized petition for certiorari when the attempted ratification occurred after the filing deadline had already passed. Id. at 98. Similarly here, the Attorney General’s attempt to ratify Mr. Comey’s indictment on October 31 “came too late in the day to be effective,” as the statute of limitations for the charged offenses expired 31 days earlier on September 30.21 Id.
21 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)).
Update: Comey has posted a video. And James posted this statement:
I am heartened by today’s victory and grateful for the prayers and support I have received from around the country.
I remain fearless in the face of these baseless charges as I continue fighting for New Yorkers every single day.
Of course they’ll double down on ‘teh stoopid’; it’s what the rapidly decompensating sun king wants.
Simultaneous to all of this, the Defense (er War) Dept. has launched an investigation into Sen. Mark Kelly now:
https://www.democracydocket.com/news-alerts/trump-death-threats-defense-department-mark-kelly-review/
He’s retired, and he served with honor. (Unlike Kegseth.)
Please don’t feed Trump and Hegseth’s egos by calling it the Dept of War. There is no such thing, and hasn’t been since about 1947.
Bigger news is that this will put the onus on SCOTUS’s Fash-Six (I saw somewhere else, don’t remember) to decide how imperial they wish their king to be in the administration of justice.
A-ppeal is the slippery part of a banana republic.
It’s where the Roberts’ meets the rouges.
Sweet!
NYT reports that the ruling is larded with citations to writings by Scalia, Thomas, Gorsuch, and others. Even Cannon. That will make the pretzel logic more difficult to sustain.
I love this for them!
I assume US Attorneys are paid a salary and that LH was collecting pay for allegedly doing this job. If she was not lawfully serving, does she have to return whatever pay she received? Because we taxpayers really deserve a refund on this one.
Any bets on what her next gig might be? Office of White House Counsel? Overseeing the stiffing of contractors on the ballroom construction?
IANAL so this is probably not actually a good move, but perhaps Comey’s team should request a stay pending (the government’s) appeal, leaving the district court to handle the other motions in the meantime! Or will he appeal the “without prejudice” aspect of this?
Dr Wheeler – I’m _very_ hesitant to push back on your analysis, but I didn’t read what you referenced in your update like that (actually, I did, then re-read it and saw it differently). This paragraph (and footnote) are talking about why Bondi did not have the power to indict at the time when she ratified Halligan’s actions). The next para talks about the government’s argument about the 6-month grace period as giving Bondi an extension, but the judge said that only applied if the indictment was dismissed, which it had not been when she attempted to ratify Halligan’s work.
However, I don’t see anything in here that would prevent DoJ re-indicting in the next 6 months (or 60 days post appeal, if/when they do that), other than the question of whether they can install a prosecutor with the [lack of] ethics necessary to do it) in time. That 6-month rule seems to be very broad. Of course this assumes that there was an indictment to dismiss in the first place …
I am less of a lawyer than yourself, but part of the reason Lindsey Halligan, Insurance Lawyer and Mary Kay Enthusiast, moved quickly on Comey was she had just 5 days left to file charges.
In a just Thor-ruled universe that should mean Comey can’t be charged again.
We’ll see.
Doesn’t this artfully crafted statement say it all:
“An invalid indictment,” however, “cannot serve to block the door of limitations as it swings closed.”
Sadly not, I fear (however artfully crafted!). That case appears to have been one of a superseding indictment issued after the statute of limitations had run, but where the original had been invalid (but not dismissed). Indeed, the lack of a dismissal was why the 6-month rule was found not to apply in that case.
But I’m way out of my depth here … so going back to the gallery to watch and learn!
From the Factual Background section of Currie’s opinion (footnotes omitted here):
She follows this by citing Trump’s now-famous Truth Social post, ordering Bondi to get Comey et al. indicted, in which he also opines about Siebert: “A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so.”
And now, per Currie’s order, Siebert is back at EDVA. You know Trump is chewing the walls right now over that.
But this raises a big question: Assuming that the DOJ appeals Currie’s ruling, does Siebert or Halligan run EDVA while the appeal proceeds?
(If it is Siebert, the fireworks coming from 1600 PA Ave will be epic.)
I thought Siebert resigned, so the district judges will appoint a new interim USA, right?
The EDVA judges can appoint any suitably qualified lawyer as interim USA, until such time as they revoke the appointment or the Senate confirms a presidential appointee. That means they could put Siebert back in as USA.
Whether he would accept the assignment is another question. He would still be under Bondi*, after all.
* being a derivative of the term ,”under bondage.”
Those walls probably still have remnants of ketchup and Mickey D fragments that couldn’t be scraped off. Much to chew on, evidently.
Siebert is not back. But I would be unsurprised if EDVA judges offered to appoint him to it.
I’m probably wrong, but have been wondering if losing might have been the plan all along.
I think all these revenge prosecutions risk exposure for Trump and his gang.
So they appoint Halligan to be seen to be fulfilling campaign promises – red meat, cause outrage, flood the zone and partially satisfy Trump’s boner for violent power.
When it comes unstuck (which it seemed designed to do) they can whine about judicial bias and move on without the risk of airing more dirty laundry.
Halligan will either be cast as a victim of TDS or thrown to the wolves. Meanwhile Trump’s base continues to be whipped up against the judges and deep state which is where he needs them to be.
Am I crazy?
Re James Comey prosecution. There is a long standing cop saw regarding dodgy arrests/prosecutions is that you can beat the rap but you can’t beat the ride. I think a big hassle is the point of all this.
To a point, you’re correct but observe most of those types of local yokel prosecutions take care not to show documented animus. Convict-1 blows that claim up every time he posted stuff on ‘Truth’ Social or DM’s Bondi demanding prosecutions. Comey, James, Schiff, Kelly, etc. all can connect the dots back to Convict-1 and Government / DoJ abuse.
This ruling has had the effect of riling up the MAGAts at Faux “News” comments. They don’t understand the 120-day rule. All they know is an “activist” Clinton-appointed judge ruled against the Trump Admin.
IANAL. Trump has used the courts throughout his career to punish his adversaries: the cost of litigation, the mental load of court cases, the besmirching of reputations, the sanctions delivered by the court, etc. However, it’s almost always been civil litigation (thus Lindsey H.’s role) so it’s possible that Trump is motivated by litigious thinking, but the downside risks of mishandling a criminal case were not taken into serious consideration and those in his orbit were unwilling and unable to push back.
#ByeFelicia
#te
In addition to the fully expected emergency appeal, Convict-1 continues to go after his perceived enemies. Today Whiskey Pete threatened to court-martial Mark Kelly CAPT, USN (Retired) because of the video he and five other veterans made about following illegal orders. Not only does this flout what the oath we take, the Constitution and the UCMJ, but there is precedent (US v. 1LT Calley, Japanese war crimes trials, Nuremberg trials) that makes it clear that ‘just following orders’ is not a valid defense for any officer or enlisted person.
Recalling retirees is subject to 10 USC 688 which is intended to ensure access to knowledgable servicemembers. Two categories are present: Category 1 is for recent retirees (less than 5 years out) and under 60. Mark Kelly retired in 2011 and is 61 (failing both Cat 1 conditions), so if he’s recalled it is under Category 2 which is more of a general mobilization. This is even before considering Congressional immunity inder the Speech and Debate Clause as a reason to reject CM proceedings. Mark made his remarks as a Senator, not as a Navy Captain.
Three categories not 2:
Category 1: less than 60 years old, less than 5 years out.
Category 2: less than 60 years old, more than 5 years out.
Category 3: more than 60 years old, or disabled. Mark Kelly falls in here at age 61, and would I think have a case to show a political prosecution. It will be interesting to see what Whiskey Pete and Convict-1 considers ‘misconduct’.
Note that LTGEN Mark Flynn was able to sidle out of responsibility for admitting to be a foreign agent while briefly DNI while drawing retirement pay. Kelly can point to Convict-1’s pargdon after AG Barr spiked the sentencing.
Would that Kelly would do as Hunter Biden did with Melania: “Bring it on, asshole.”
I glean from what your saying (not having served myself) that in order to court-martial a retiree they need to be recalled back into service first. That would make sense, but would the cause for trial have to be tied to actions while on duty, as well?
And isn’t there a proscription against recalling sitting members of the US Congress?
I’m a little unclear on some consequences.
Dismissal w.out prejudice, thus, 60 days or 6 months to re-indict. On the other hand, dismissal, and now the SOL has run out. So is the SOL tolled because of the dismissal w.out prejudice? Or has it already run out?
If the latter, then DOJ will have to come up with another “false or misleading” statement, yes?
Forgot to add that the opinion seems pretty much bullet-proof, i.e., DOJ can appeal, but are not likely to succeed.
It depends upon what lawyer is asked and it will be the main point of appeal in the Comey case. However, I suspect the SOL tolling will not happen for two reasons: I don’t think there is a provision for tolling the time in the actual law or precedents, and also IS Halligan having been ruled as ineligible means no valid indictment was returned in the SOL period. Comey could make the point that Bondi could have parachuted in as AG and done the deed herself but chose this irregular route for ‘reasons’ like plausible deniability when it blew up.
It may not survive a SCOTUS appeal, but a couple of the Fascist Six are also particular about following established legal procedures so they’ll have to decide what they value most.
This is what jumped out at me in that Currie dismissal:
Does not that statement prejudice Comey’s case (if it does indeed get picked back up), in that it takes the gov’t side in the still very un-ruled-upon Defense charge that the indictment was not, in fact, secured…or that it was secured under false pretenses?
What’s to prevent Bondi from employing her Habba maneuver, I.e. firing whoever the judges pick and re-installing Halligan or picking someone else?
Thanks to EW and to everyone for great comments here. Very instructive to this non-attorney. I have a question prompted by my Twitter friends’ focus on the “without prejudice” part.
It appears that the next US Attorney for EDVa will have to be either approved by the Senate or appointed by the judges of the EDVa. Doesn’t this mean that it will be much more difficult to find a person who will bring these cheesy indictments and get them in the job?