The legal victory for former FBI Director James Comey and New York Attorney General Letitia James is not yet clear.
New York AG Letitia James pleads not guilty to bank fraud charges
New York State Attorney General Letitia James has pleaded not guilty to charges of bank fraud and making false statements to a financial institution.
Former FBI Director James Comey and New York State Attorney General Letitia James scored a major legal victory this week when a judge ruled that the prosecutors who accused them were wrongly imprisoned. However, winning doesn’t mean there’s still a chance of winning.
Senior U.S. District Judge Cameron McGowan Curry, appointed by former President Bill Clinton, dismissed the charges against both men, who were targets of President Donald Trump, ruling that the dossier indictment could not stand unless the prosecutor who secured the dossier was duly appointed.
Attorney General Pam Bondi said the Justice Department would appeal the ruling, offering one potential lifeline to the lawsuit. But even if the Justice Department loses that appeal, it could seek new charges against Mr. James, and possibly against Mr. Comey.
“We will pursue all legal action, including immediate appeal,” Bondi said at a press conference on Nov. 24.
Asked for comment for this article, James’ office pointed USA TODAY to a Nov. 24 statement in which James said he was “emboldened by this victory” and “will not be intimidated in the face of these baseless accusations.”
Mr. Comey’s lawyers and the Justice Department did not respond to requests for comment.
The Justice Department asked a grand jury to indict Comey and James only after President Trump posted on social media on September 20 that they were both “totally guilty” and should be indicted. President Trump did not say in his post what charges he had in mind.
As New York’s attorney general, James filed a civil lawsuit against Trump that could have cost the president hundreds of millions of dollars. Comey has been an outspoken critic of Trump since Trump fired him in 2017 during the FBI’s investigation into Russian interference on Trump’s behalf in the 2016 presidential election.
Here’s a breakdown of what’s next after the two lawsuits are dismissed, including why the Trump administration can still pursue charges.
Is time running out for the Trump administration?
If the Justice Department wins the appeal that the attorney general has promised to file, the case against both James and Comey will be reopened. But aside from such success, there would still be options to continue pursuing the pair.
Most federal crimes can only be prosecuted if the charges are committed within a certain amount of time. The same goes for the charges facing both Mr. James and Mr. Comey.
James is charged with bank fraud and making false statements to a financial institution, which offenses must be prosecuted within 10 years of their occurrence. The original indictment alleges that James committed these crimes between 2020 and 2024, meaning the Justice Department still has plenty of time to seek new charges.
Meanwhile, Comey has been indicted on charges of lying to Congress and obstructing the proceedings of Congress, which is subject to a five-year statute of limitations. The indictment against Comey alleges that he committed these crimes on or about September 30, 2020, meaning the original deadline for indictment expired at the end of September of this year.
However, federal law typically gives the government an additional six months to pursue new charges after federal charges are dismissed. The question is whether that law applies to Mr. Comey’s situation.
Judge Curry appeared to suggest that the law would not help the government bring new charges against Mr. Comey. In a footnote to a Nov. 24 opinion, she wrote that while a valid indictment generally stops the clock and forces the government to file the same charges, an invalid indictment “doesn’t serve to prevent the door from slamming shut.”
Mr. Comey’s lawyer, Patrick Fitzgerald, appeared to point to that footnote in a statement after the verdict, saying the government was running out of time.
“This decision shows that the statute of limitations has run because the charges are invalid and no further charges can be filed,” Fitzgerald said.
However, not all legal experts agree on that interpretation of the law.
Ed Whelan, a former Justice Department official under President George W. Bush, wrote in a post on X that he found Curry’s footnote “virtually irrelevant.” He noted that the law that typically gives the government an additional six months includes an exception for when charges are dismissed because they “prevent new prosecution,” but that exception “does not appear to apply.”
Sarah Isgur, who worked at the Justice Department during Trump’s first term and has continued to criticize White House interference in the department, said on the “Advisory Opinion” podcast that she believes the six-month delay applies to Comey’s situation.
“So the language of this law is very broad,” Isgur said. “I just don’t see how[Comey and his lawyers]are going to get away with this.”
Who will sue if Harrigan is gone?
Even though the Justice Department could theoretically file new charges, another question is whether the agency’s leadership will be able to find the accusers.
Harrigan was appointed to replace Eric Seibert, Trump’s former personal attorney who has no experience as a prosecutor but was said to have expressed skepticism about bringing charges against Comey and James.
Curry’s ruling leaves it up to the U.S. District Court for the Eastern District of Virginia to fill the vacancy for U.S. attorney general in the district until a Senate-confirmed presidential nominee can serve in the role permanently. It remains to be seen whether a future appointee will also be able to pursue this charge and secure an indictment from a federal grand jury again.
The Trump administration could also seek to have someone other than the top Virginia prosecutor pursue the charges. In an attempt to correct potential flaws in the way Mr. Harrigan initially secured the indictments, Bondi on October 31 issued an order appointing Mr. Harrigan as a “special counsel” authorized to conduct legal proceedings in the Eastern District of Virginia, including, among other things, the prosecution of Mr. James and Mr. Comey. Bondi said in his order that the appointment of a special counsel was retroactive, so it applied on Sept. 22.
Mr Justice Currie ruled that Mr Bondi could not retroactively resolve the issue of Mr Harrigan’s appointment in this manner. But that doesn’t mean Bondy can’t try to install Harrigan to lead future prosecutions against James and Comey by appointing him “special counsel.”
Other reasons for dismissal
Even if the Trump administration finds another way to charge James and Comey with similar crimes, that doesn’t mean the charges will go to trial.
In their motion, James and Comey argue that the lawsuit should be dismissed because of the Trump administration’s persistent pursuit and alleged “outrageous conduct.” For example, James claimed that the Trump administration only obtained charges against her after it “systematically removed interfering ethics officials and career prosecutors.”
With the charges dismissed this week, the judges in the two cases may decide the allegations are dead issues for now. But even if that were the case, new charges could bring the matter back to the fore, potentially leading to greater powers.
Roger Perloff, a former lawyer who covers legal matters for the law publication Lawfare, said on the podcast Lawfare Live that the defense’s case could be strengthened if Harrigan was appointed as a “special counsel” just to prosecute James and Comey.
“This reinforces the view that there is something vindictive and selective about these two prosecutions,” Perloff said.
