The expiration of the statute of limitations for the alleged crimes of the former director of the FBI, James Comey, is an obstacle for the government’s efforts to revive that prosecution — but one that might be possible for Attorney General Bondi to overcome.

Ms. Bondi has vowed an “immediate appeal” of that dismissal but so far none has been filed. In a statement on Monday she  declared that “Lindsey and our attorneys are simply doing their jobs: advocating for the Department of Justice’s positions …  They do not deserve to have their reputations questioned in court for ethically advocating on behalf of their client. This Department of Justice has no tolerance for undemocratic judicial activism.”

The interim United States attorney for the Eastern District of Virginia, Lindsey Halligan, secured the indictment against Mr. Comey on two counts of lying to Congress on September 25, five days before the five year deadline expired. The allegations that Mr. Comey lied to Congress date to testimony from September of 2020 about leaks within the FBI under his directorship.

The indictments of Mr. Comey and New York’s attorney general, Letitia James, came after the previous interim appointment in the Old Dominion, Erick Siebert, resigned following reports that he was reluctant to prosecute the two individuals, who are critics of Mr. Trump. Mr. Comey’s indictment came five days after President Trump wrote on social media “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done. We can’t delay any longer, it’s killing our reputation and credibility.”

Last month a federal judge, Cameron McGowan Currie — an appointee of President Clinton — dismissed all charges against Mr. Comey and Ms. James after she ruled that Ms. Halligan was unlawfully appointed by Ms. Bondi. The government has since tried to secure a second indictment against Ms. James —  bringing in an experienced federal prosecutor, Roger Keller, from Missouri, to handle the case —  but  last week a second grand jury demurred from handing up charges.   

A possible reason the DOJ moved quickly against Ms. James and has yet to attempt to revive the case against Mr. Comey is that any effort to salvage the prosecution would likely be immediately attacked as unlawful given the expiry of the statute of limitations. The bank fraud allegations  against Ms. James, which also date from 2020, carry statutes of limitations of 10 years rather than the five mandated for lying to Congress.  

Federal law, though, appears to allow bringing a new indictment after a case is dismissed after the statute of limitations expires. New charges can be filed within “six calendar months” of the date the indictment was dismissed, or 60 days after the appellate process ends. Judge Currie, in a footnote to her decision disqualifying Ms. Halligan, writes that  “an invalid indictment … cannot serve to block the door of limitations as it swings closed.” 

Judge Currie’s position is that while a case that is dismissed after the expiration of its statute of limitations can be refiled, that remedy is unavailable when the indictment is found to have been defective from the beginning. Mr. Comey’s attorney, Michael Dreeben — a veteran of the teams of Special Counsels Jack Smith and Robert Mueller — has argued in court that “there was no indictment.” Ms. Halligan presented the case to the grand jury herself, a move that backfired when her appointment was ruled invalid. 

Judge Currie’s footnote, though, is not dictum — meaning that it is not binding on future courts. Any appeal of her disqualification ruling — and eventually, of the statute of limitations question — will be directed to the Fourth United States Appeals Circuit. The law that allows for charges to be refiled is phrased with maximum breadth — “whenever an indictment or information charging a felony is dismissed for any reason.” 

That could mean that the law’s second chance for prosecutors could be available even in a case like Mr. Comey’s when an indictment was ruled void. Judge Curie, though, takes the position that when an “indictment is void, there is no legitimate peg on which to hang” any future charges.  Her decision to throw out the chargers “without prejudice,” though, means that the government can seek a new indictment — if it can surmount the statute of limitations issue.