If we are living in an age of lawfare, this is fast becoming a war of attrition. The dismissal of the indictment of James Comey and Letitia James is the latest twist in the controversial prosecutions of Trump antagonists.
Letitia James immediately posted her own message celebrating the decision, but she may want to focus on the prepositional phrase after the word dismissal: without prejudice. The Administration may still be able to resuscitate these cases.
James’s victory lap on social media is a fitting addition to the opinion, which emphasized the social media postings of President Donald Trump on these cases. U.S. District Judge Cameron Currie noted that President Donald Trump demanded the indictment of these and other individuals shortly before the indictments were handed down.
Law seems to have become entirely improvisational in the age of Trump. James and Manhattan District Attorney Alvin Bragg adopted highly novel legal theories to pursue Trump in New York, including Bragg’s reviving a dead misdemeanor charge and converting it into a multi-count felony indictment. Both cases were denounced by experts across the political spectrum as the raw weaponization of the legal process.
However, James is entitled to every bit of due process and procedural protections that she denied to Trump. Rushed to complete in the final days of the statute of limitations, these indictments proved a target-rich environment for defense counsel.
When the Comey and James indictments were filed, many of us noted a couple of problems. First, the James indictment seemed disjointed after the denial of a key charge. With time running out on the statute of limitations, Acting U.S. Attorney Lindsey Halligan quickly stitched the remaining counts together and filed the indictment. It was ad hoc and hardly ideal.
The main problem that we identified was with Halligan herself. The former private counsel for President Trump was appointed a “special counsel” to function as the acting U.S. Attorney after the removal of her predecessor. Erik Siebert had reportedly resigned after expressing reservations about the legal basis for the indictment.
The problem is that there is a federal statute, 28 U.S.C. § 546, that governs the appointment of interim U.S. Attorneys when a vacancy arises. A president has 120 days to use such an official to secure a Senate-confirmed replacement. Siebert had already used that 120-day period, and the statute mandates that, after any expiration, the district court appoints the acting U.S. Attorney.
While the Justice Department has good-faith arguments that the law can be more broadly interpreted, other judges have supported this plain meaning, including a New Jersey court that disqualified another former personal counsel for Trump, Alina Habba, as the U.S. attorney.
Judge Currie effectively declared “time’s up.” She also noted that this rush to indict followed the President’s posting expressing anger over the failure to indict these individuals. The President asked “What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.”
He would later take down the posting, but the damage was done.
There are still challenges depending on whether these indictments constitute selective or vindictive prosecutions. The defendants are using the President’s posting as Exhibit 1. If Judge Michael Nachmanoff rules that these indictments are invalid for other reasons or constitute either selective or vindictive prosecution, there would not be a procedural “cure” absent a reversal of those holdings on appeal.
However, Currie’s decision could be addressed by a new indictment bearing the signature of a properly commissioned Assistant U.S. Attorney, as long as the court agrees that the indictment was timely filed.
None of this means that the defendants are innocent of the underlying criminal acts. Rather, these rushed indictments were highly novel and novelty is never good in a criminal indictment.
Notably, some of us have noted that the indictment against former Trump National Security Adviser John Bolton in Maryland is the strongest of the three cases. The Administration has indicated that it may in fact be adding charges.
Bolton is also expected to raise the claims of vindictive and selective prosecution.
What is clear is that all three cases are likely to be in the legal system for years. Indeed, these cases could easily extend into a new Administration. If that is a Democratic president, all three defendants may anticipate a pardon from Trump’s successor.
It is equally clear that the Administration is unlikely to shrug off these cases as damaged goods.
First, they need a cure. District courts are unlikely to agree that presidents can daisy-chain appointments indefinitely, with each acting U.S. Attorney serving for 120 days like a prosecutorial timeshare. That is particularly true when the authority to appoint under federal law rests with the district courts. In other words, while the President and many others may view these three as “guilty as hell,” hell knows no fury like a court scorned.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of the best-selling book “The Indispensable Right: Free Speech in an Age of Rage.”
This column ran on Fox.com
The Senate needs to push through Trump’s appointees as quickly as possible. Stop the RINO obstruction act and get on with dismantling the Left’s operations. We elected Donald Trump now get on board or f-off.
And Trump needs to apologize to MTG.
The obstacle that prevents the Senate pushing through Trump’s judicial appointments as quickly as possible is the “blue slip rule” of the Senate that permits Senators of a State to object to the President’s nominee to a federal judgeship or to the position of U.S. attorney their their state. Such an objection is then sent to the Senate Judiciary Committee that takes it under advisement when deciding whether or not to advance the nomination to a vote on the Senate floor. More often then not, a blue slip objection to a nominee is followed by the Judiciary Committee and a nominee’s advancement to a confirmation vote by the full Senate is prevented and denied. Both Virginia senators (Warner and Kane) are Democrats and, more likely than not, will return their “blue slip” against any Trump nominee, more so in light of the administration’s attempt to indict Comey and James. The Senate “blue slip” is a Senate tradition and is not codified in law. It’s abandonment should be considered and a President’s nominee, if advanced out of Senate Judiciary Committee, should be decided by a vote on the Senate floor. That’s what should happen in a representative democracy.
Yup. Blue slip tradition is nonsense. Constitution places the respondibility for nominee confirmation on the Senate, not a senator. Dump it.
Democrats have mastered the art of lawfare, using compliant courts and judges to bend to their will. Republicans are always behind the curve. Part of it is philosophical, since Democrats believe in government solutions for all problems. Leftwing judges are all too willing to act unfairly, even illegally, if it is to “get Trump,” and don’t seem to care if their rulings are thrown out on appeal. The initial ruling proves their loyalty to the Democrat party.
Now that it is exposed, the IRS does not follow through on the tax issues?
The entire thing is not about getting a conviction. It’s simply about making Comey have to spend his lifes fortune just like the fortunes spent by grandmothers who peacefully came to protest on Jan 6. Many had to sell their houses to pay for their defense. You can rest assured that Comey and James’ legal journey is not over. Hit em where it hurts in the place where the green backs reside. A well deserved come upins is indeed in order. A fortune spent on ibuprofen to ease the pain is the just deserts for the weasel ones. Sorry weasels I don’t mean to give you a bad name. I should have used rats instead with a few cockroaches thrown in for good measure. Let the lawyering up continue. May the Comey and James 401K be shot to hell when it’s all over. Somehow we thought that a Benedict Arnold would never happen again.
And the Trump admin told you that?
Thinkitthrough, these cases won’t be litigated “for years”. They will be dismissed even if Currie’s ruling is reversed and that is highly unlikely. These cases were so badly put together that it’s impossible for them to continue to be litigated.
If these were as you say they were, to make Comey suffer then they Vindictive prosecution defense will be much easier to do and dismiss the case…again.
“Quiet! Quiet, piggy.”
Mortgage fraud is not a novel legal theory!
The incompetence of Trump’s team is legendary. The 28-point “peace plan” was hatched in secret with Putin’s representative, and the plan was to spring it on the Ukrainians with a “take it or lose our support” ultimatum. Now this plan is falling apart — it’s now been amended in a way Putin will not accept.
The scariest part? Trump is not all that adverse to Americans losing our freedoms under an extra-Constitutional mafia-style Presidency with unlimited powers. So long as he’s the mafia Don and nobody else.
Incompetence? Scary part?
You are the best proof that many people (are you one?) need mental help.
“Quiet! Quiet, piggy.”
“ First, they need a cure. District courts are unlikely to agree that presidents can daisy-chain appointments indefinitely, with each acting U.S. Attorney serving for 120 days like a prosecutorial timeshare. That is particularly true when the authority to appoint under federal law rests with the district courts. In other words, while the President and many others may view these three as “guilty as hell,” hell knows no fury like a court scorned.”
What Turley is saying is that these cases are lost causes. There are so many things wrong with them that they are certainly going to be dismissed either way. Note that he’s not saying he’s hopeful Trump will succeed. He’s trying to be as gentle as he can to avoid MAGA outrage and scorn.
“What Turley is saying…” Now its interpreting Turley’s words. It reads minds too.
“Quiet! Quiet, piggy.”
What’s more concerning in all of this is that a bunch of self annointed “wordsmiths “, experts in the meaning of is, have so corrupted our judicial systems that blatant lawlessness and corruption have become the norm. The average American citizen sees this slanted application of justice, from IRS taking our monies to property taxes levied on OUR own assets WE already own. We see elected bureaucrats and scam artists work the system, only to be caught and go unpunished counting their money from their ill gotten gains. This is just another dog and pony show to appease the public and absolutely nothing will change. I imagine that only when the dollar tanks will these corruptocrats receive their just rewards.
Did anyone seriously think these people would face justice?
You certainly did, spilt a lot of angry words over the past year claiming they’re guilty as heck. Backtracking now?
You sure you’re not that drag queen from Baltimore?
Anonymous says:
“You sure you’re not that drag queen from Baltimore?
Possibly your confusing Margot with you Daddy?
Hey Baltimore Anonymous, that is where you’ve told us all your from. Looks like Margot has taken residency in your head. Go get em Margot. Hahahahaha.
Comey is essentially unprosecutable. He never was indicted because Halligan’s appointment was illegal from the start. Those hoping an appeal will reverse Currie’s ruling are in for a dissapointment.
So the same then must hold true for Jack Smith, right?!
Jack Smith is also unprosecutable.
No, his prosecution of Trump as he was NEVER confirmed as a Special Counsel by Congress. But then you knew that didn’t you?!
I think Anonymous is saying Jack Smith was illegally appointed by Atty. Gen. Merrick Garland.
Special cousels are not required to be confirmed by the Senate. Jack’s Smith’s appointment was legal, and the challenge to his appointment was never resolved. He resigned before any court could determine if he was legally appointed.
If he was illegally appointed, would his actions against Trump also be illegal and not protected by qualified immunity? Qualified immunity protects elected officials and legally appointed government officials from personal civil liability from the results of their actions if those actions were lawful. How could any action by an illegally appointed official be legal?
Only Judge Cannon deemed Jack Smith’s appointment illegal, but that was based on a wacky interpretation of the law. The case was dismissed and Jack Resigned before any definitive ruling stating Jack Smith’s appointment was unlawful. The appeal to Cannon’s ruling was taking so long that it became moot once Jack Smith resigned.
God U R one dumb oblivious person. If Smith’s appointment was determined illegal in a federal court and it wasn’t appealed, it stands. You blind lying cherry picking mofo.
“Will no one rid me of this troublesome priest?” is a quote attributed to Henry II of England that preceded the death of Thomas Becket, the Archbishop of Canterbury, in 1170. It is often used today to claim selective and vindictive prosecution by a government authority. But there are differences worth noting. First, Henry was inciting or encouraging a crime, i.e., the murder of the archbishop. Thus, when Henri’s knights carried out the crime, Henri could be considered an accessory before the fact and/or a co-conspirator in a criminal venture.
Trump, on the other hand, is not inciting or encouraging a crime. On the contrary, he is asking that the crimes of those who happen also to be his enemies be prosecuted in accordance with the rules of constitutional law. Like the rest of us, Trump enjoys his First Amendment rights and gaining the presidency did not deprive him of the right to speak his mind. Unlike Henry, Trump’s enemies will not be murdered in the dead of night but, instead, subjected to the laws of the land and a jury of their peers before a judge sworn to protect their rights in the process.
Trump’s enemies may be acquitted of the charges and live to fight another day, something that the archbishop could not do. His fate was forever sealed by the king’s crime. Lost is all of this are the facts: Did James falsify a mortgage application in violation of the banking laws of this country, and did Comey give false testimony under oath to Congress and obstruct an official proceeding in violation of the statutes? I think we all know the answers. Others, lots of others, have been prosecuted for the exact or similar crimes. A quote that seems apropos and a counterpoise to the quote of Henri, and often said in the past by James, is “No one is above the law.”
It is time for AG Bondi to appoint a special counsel pursuant to 28 CFR 600. A special counsel is warranted whenever a conflict (such as politics) exists, in which case, the AG “may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.” That includes appointing a special counsel, described in the Code of Federal Regulations as follows:
(a) An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. (28 CFR 600.3(a))
Sounds to me like Professor Turley just found himself a sabbatical job. Or maybe Joe DeGenova, the former US Attorney for D.C. might be interested in coming out of retirement for this one.
JJC,
Thank you for that very interesting mix of history and legal analysis.
A thousand words and yet he says nothing of consequence. Train of thought diatribes.
And he reads peoples thoughts too. A lot of that goin round.,
“Quiet! Quiet, piggy.”
Perhaps I’m missing something. Why can’t an existing federal attorney – maybe one who worked under a prior administration – in the same office refile charges? Why must it be a ‘special counsel’ when the Constitution does not require one? James ran on and was elected to “Get Trump”. Same with Bragg. Neither of them are ‘special’ in any sense of the word, let alone ‘special counsel’. So again I ask, why not assign any attorney who’s already been confirmed by the Senate and prosecute the merits of the charges?
JAFO: It does not need to be a special counsel. The first appointed US attorney in EDVA was the pick recommended to Trump by the two Democrat VA senators. He was a fine attorney but balked at the idea of indicting James and Comey because, he said, they were being picked on by President Trump. Trump fired the US Attorney and replaced him with someone of his own choosing who would seek the indictments of James and Comey. The two Democrat senators “blue slipped” the president’s choice, meaning they issued blue slips showing negative or no support for the nomination. By tradition, the Senate Judiciary Committee that confirms or rejects the president’s nominees for judgeships or US Attorneys honors the blue slips and will not schedule a confirmation hearing. Now that the president’s pick has been declared invalid by a court, the indictments against James and Comey obtained by that invalid choice are themselves invalid and must be refiled by a competent and properly designated US Attorney. The Comey indictment could be refiled by the DC US Attorney (Jeanne Piro) because the crime was committed against the Congress. The James indictment would need to be refiled by a US Attorney in VA where the crime occurred. The statutes calls for the district court judges to appoint someone as US Attorney if the selectee of the president cannot serve. The problem with these and other potential indictments against those who, besides whatever alleged crimes they may have committed, conspired against President Trump constitutes a political conflict of interest for Democrat selectees unwilling to proceed against members of their own party. The solution is to appoint a special counsel with jurisdiction to indict wherever the AG decides. It removes the conflict issue from and returns the prosecution of crimes to the Executive Branch where the founders placed it. The people, of course, have the final say in all of this by virtue of who they vote in or out of office.
Yes, Trump’s pick refused. Can you clarify, please… are you saying only Siebert – and absolutley no other Republican selectee previously-confirmed US attorney in the same office (perhaps there are none being a possiblilty) – is allowed to convene a Grand Jury for the James case after Siebert’s refusal?
“The people, of course, have the final say in all of this by virtue of who they vote in or out of office.” That doesn’t seem to be the case here in either indictment, though. Since the statute that says District Courts assign unfilled US attorney positions, what’s to prevent a Court from assigning a fellow lawfare-traveller for the duration before the president’s candidate is confirmed? That in itself looks and sounds like an unconstitutional delegation of Power from I to III on the surface, meaning Congress passed an unconsitutional statute. Maybe it’s time to challenge that, too as part of the appeal for dismissal of charges.
In any case, this certainly leads the informed citizen to conclude only one thing: If the elite class doesn’t chose (or isn’t allowed by a single Judge) to prosecute it’s own, what chance does any citizen have against the same charges? It would seem the politically-connected are indeed “above the law”.
Turls: your “some of us” club would’ve done yourself a favor to realize the extremely flawed nature of the charges against Comey and James in the first place. This is in no way is similar to trump’s conviction in NY. There the only dispute was in how the various charges against trump were packaged. Here the attempted prosecution had no merit. It was purely political.
The masterclass in shoddy legal work by trump, bondi and Halligan is just an added feature. Disbarrment will arrive hard for Halligan, and it should also land on bondi. Question I’d enjoy seeing you answer is can a disbarred attorney still be AG? Hoping the answer is no to that…
Thank you Mr. Comey.
Turley should analyze the statute in question. 28 USC Section 546. It says “a person” cannot serve more than 120 days on an interim basis without District Court approval. Siebert and Halligan are two different persons and Halligan served less than 120 days. To me it is doubtful that if, for example, the Senate is controlled by the opposite party and refuses to confirm within 120 days, the President in effect loses the appointment power and the office becomes a court appointed receivership. The daisy chain makes more Constitutional sense to me than the alternative and is consistent with the plain meaning of the statute. In this case, Siebert resigned.
Do keep in mind fully, that Turley writes simple (in the sense the local idiots can understand it) opinion pieces. Not legal analysis.
Seibert was the first person appointed as acting district attorney by Bondi. He was not confirmed by the Senate. Only ONE AUSA can be appointed by Trump without Senate confirmation and that appointment is valid for 120 days. If that first appointment is not confirmed by the Senate within those 120 days then the judges in the district have to appoint one. Seibert resigned just before his 120-day limit. Trump appointed Halligan to replace him, but the law does not allow that. The district judges were supposed to appoint a replacement. Trump needed a Senate-confirmed replacement for Seibert. The bypassing of the Senate confirmation by designating Halligan as a “special appointment” is illegal and thus not a valid appointment. Professor Turley left that part because the administration tried to daisy chain another appointment to pass the Senate confirmation that the law requires. The law is designed specifically to avoid this kind of workaround in the Senate confirmation.
That’s not what the words of the statute say. The question is whether after 120 days the AG is stripped of her power to appoint and only the District Court can do so, or whether the AG continues to have power to appoint along with the District Court. There are reasonable arguments for and against each view. The literal words of the statute actually favor the latter, but the former may be a better interpretation of the statute as a whole.
Wanting to interpret the statute as broadly as possible to justify Halligan’s appointment is not going to help. Seibert was already appointed first. The law was designed to avoid the kind of daisy chain appointments to avoid Senate confirmation. Halligan’s appointment is precisely what the law prevents. When Seibert resigned the only legal entities allowed to appoint a new US attorney were the district judges. Trump didn’t want that because he wanted a loyalist to do what the rest of the real professionals did not. Prosecute Comey regardless of the facts. The charges against Comey were not possible and that is what the professionals knew. Halligan was chosen by Trump because she was eager to please him and her inexperience and lack of qualification to prosecute these cases doomed it from the start.
The statute doesn’t say that after 120 days “only” the district court can appoint. Instead it says the district court “may” appoint, and the power of the AG to appoint is not explicitly cancelled.
Avoiding a “daisy chain” is one possible motive for interpretation. Another one, which cuts the other way, is to avoid usurpation of Presidential control over appointments through a combination of the Senate and the courts.
Daniel, Seibert was handpicked by Trump as acting US attorney. He served his full 120 day term and the courts appointed him as per the law. He could not find probable cause to chartge Comey and that enraged Trump. Trump commanded Bondi appoint Halligan after Seibert resigned. The law does not seem to allow continued appointmets to avoid Senate confirmation.
Judge Currie ironically used Judge Cannon’s oddball justification deeming Jack Smith’s appointment illegal to point out Halligan was also appointed illegally.
I would offer that there’s even a larger question looming here and that is whether m 546 is constitutional. Since Marbury, the Appointments Clause has been at issue. The Court has addressed it several times, each time giving a bit more nuance to the president. Professor William B. Gwyn of Tulane University has written of the historical meaning of what we call the executive and legislative branches of our government: Quote: [T]he terms “legislative power” and “executive power,” which date in English only from the seventeenth century, were coined to refer, not to single governmental functions, but to the variety of functions exercised by the two houses of Parliament on the one hand and those exercised by the monarch, his officials, and his advisers, on the other hand. Unquote Last summer’s “no kings” rallies were fun to watch but, like it or not, much of our constitutional interpretations derive from old English law. The founders saw government in a more unitary fashion, not as we have it today where one party in our “parliament” refuses to permit the other party, our “monarch” to exercise his power and functions. Crimes, such as those allegedly committed by James and Comey, may go unpunished and Justice suffers not because they are innocent but because one party hates the other more than it loves the country.
JJC,
Great comment! Thank you again for the historical and legal analysis.
jjc worte: “The founders saw government in a more unitary fashion, not as we have it today where one party in our “parliament” refuses to permit the other party, our “monarch” to exercise his power and functions. ”
Indeed, I have been reading Chernow’s biography of Alezander Hamilton, which emphasizes that politcal parties with diametrically opposing positions did not even exist until after the Constitution was ratified.
👍
JJC, do you see possibilities for prosecution of Comey under 18 USC 241 where it appears that the S/L is a “rollling” one?
“Acting U.S. Attorney Lindsey Halligan hastily combined the remaining counts and filed the indictment. This approach was anything but ideal.”
Professor Turley may be trying to couch his criticism gently, but the reality is clear: Halligan made a significant mistake. His attempt to present a hopeful perspective on these cases is misguided. He’s already acknowledging that Halligan’s appointment lacks validity, which means the initial indictment was fundamentally flawed. Both Comey’s and James’ indictments were never legitimate from the start.
The notion that they can simply generate another indictment within a six-month window is fundamentally flawed. The crux of the issue is that Halligan, the sole attorney to sign the indictment, did not have the legal authority to do so. The grand jury had already rejected one of the charges in the first indictment, and yet Halligan proceeded to have the clerk sign an “updated” indictment without the grand jury’s review. This is a serious breach of protocol.
Now, Halligan is facing potential disbarment due to her alleged manipulation of the indictment and various ethical violations.
These cases were destined to fail from the outset, and Professor Turley indirectly acknowledged this when they first emerged.
Those hoping this will be reversed are going to be sorely dissapointed. The law is clear. Halligan was illegally appointed and the case would have never succeeded. That is why more experienced and professional lawyers did not sign on to these cases or resigned. Turley forgot to mention that Halligan is just an insurance lawyer with zero criminal trial experience, none, and it showed brightly.
Slow down there ole fella, You’re slobering on yourself. Again.
Another commenter claiming to be able to read Turely’s thoughts.
The name is spelled Turley.
What other purpose besides the conveyance of thoughts is there to Prof. Turley writing a piece? That’s literally the purpose of writing.
Apart from “without prejudice” being adverbial in nature, 47 and his lawyers now need to pay attention to any running of a statute of limitations. Enough with fumbling the ball when dealing with cunning enemies.
They cannot bring charges again; that is the central issue at hand. Comey was never actually indicted initially because the indictment signed by Halligan lacks validity—she was improperly appointed as the acting district attorney. Therefore, everything she handles is essentially rendered null and void. If the appeals court decides to uphold Currie’s ruling, it will be the end of the line for this case and James’.
They botched this so badly it will be impossible to recover. Keep in mind that the appointment issue is not the worst part. It’s Halligan’s handling of the case and Bondi’s involvment exposesd her to potential disbarrment along with Halligan’s.
Open question. It depends on whether an unlawful indictment or no indictment was entered. If the former, DoJ has six months to refile. If the latter, the SoL has run and that’s it. Only a court will decide that if and when DoJ refiles.
Slow down old fella, you’re doing it again.
Betcha the indictment comes back? A buck?
They can’t. Halligan’s appointment was never legal. There never was an indictment.
So it just went up in smoke?
Yeah, pretty much. That’s how bad the screwed it up.
Criminal Pro/Civil Pro 101 and 102
The question of US Atty appointments must eventually be decided by SCOTUS. There are other cases with this issue.
Trump antagonist! WTF R U TALKING ABOUT. COMEY WAS INVOLVED IN A CONSPIRACY TO COMMIT SEDATION & SINCE MI-5/6 WAS INVOLVED IT US TREASON. Dud yo get up on the wrong side of the bed thsi AM.
… conspiring to achieve anesthesia is no crime….
Looks like ole Ed has had a long night.
It will be overturned, her ruling is just to run out the time on the statute of limitations.
Republicans should follow the example of Democrats in New York and just decide to lift the statute of limitations on any charge they want to bring against prominent Democrats.
Not surprised. The left will do anything to protect their own.
Who is the left?
To use language you might use, You is the left.
You is the left? For a retired supreme court justice, you sure do write funny.
Please not that I was (mockingly) quoting YOU.
Mockingly. Why would anyone think that?
Capital “YOU”, is that significant?
That fixation with anons is slowly getting to you huh? And I’m mocking you.
HullBobby,
Good one!