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