Pam Bondi Weighs Aggressive Move To Restart Prosecutions of Letitia James and James Comey: Charge Them Again With a New Prosecutor

The dismissal of the Department of Justice’s cases against New York’s attorney general, Letitia James, and the former FBI director, James Comey, leaves the Trump administration with an uphill climb to convict the two foes of President Trump. Attorney General Pam Bondi vows an “immediate appeal,” but another strategy could be emerging at Main Justice as an alternative — seeking new indictments against Mr. Comey and Ms. James. That approach, laden with risk, would at least present the benefit of sidestepping the issue of the appointment of the lead prosecutor on the case, Lindsey Halligan. Judge Cameron McGowan Currie, an appointee of President Clinton, ruled that she holds her post unlawfully and dismissed the cases.An appeal of Judge Currie’s ruling would be directed to the Fourth United States Appeals Circuit — and, at some point, possibly to the Supreme Court. Judge Currie’s ruling, because it centered on a reading of the federal statutes that control the appointments of interim United States attorneys like Ms. Halligan, will be reviewed de novo. That means that Judge Currie’s conclusion will not be given any special deference. The government cannot be encouraged, though, by the ruling of a panel of the Third Circuit on Monday upholding the disqualification of another one of Mr. Trump’s handpicked prosecutors, Alina Habba of New Jersey. The facts of Ms. Habba’s appointment mirror those of Ms. Halligan’s. The two prosecutors did not have the support of their state’s senators — all Democrats – required for a Senate convention. The two women also lacked support from their state’s federal judges, who by law have a role in approving interim appointments. Neither woman had ever worked as a prosecutor before getting the nod from Ms. Bondi, and both had emerged as lightning rods and emblems of Mr. Trump’s norm-breaking approach to federal justice.While the ruling of the Third Circuit does not bind the Fourth one, it can be cited as a persuasive authority that appellate courts share the skepticism evinced by trial judges over the administration’s appointments strategy. The lack of any sign of an appeal — despite the protestations of both Ms. Bondi and the White House press secretary, Karoline Leavitt — could mean that the DOJ is weighing its options in the wake of the rejections of Mmes. Halligan and Habba.Appeals can be filed within 30 days of a ruling, meaning that Ms. Bondi has plenty of time to submit the simple notice that signals that the government plans to challenge the ruling. Another route, though, would be to simply seek new indictments under the aegis of a prosecutor other than Ms. Halligan, possibly from a different office. During the first go-around Ms. Halligan signed the indictment and presented the case to the grand jury herself. New indictments would require the convening of new grand juries — similar to Special Counsel Jack Smith’s securing of a second indictment of Mr. Trump after the Supreme Court’s immunity decision in Trump v. United States. Mr. Smith successfully secured new charges, but his case was dismissed after Mr. Trump won reelection. While new indictments would allow the government to sidestep the issue of Ms. Halligan’s appointment, that course would present other challenges — the most significant being that the statute of limitations on the crime of lying to Congress with which Mr. Comey has been charged has already passed. Ms. Halligan’s original indictment was secured on September 25, just five days before the five year deadline expired While federal law appears to indicate that charges can be refiled if an indictment is dismissed “for any reason,” the validity of any further effort to prosecute Mr. Comey is likely to come under heavy scrutiny. Mr. Comey’s lawyer, Michael Dreeben — a veteran of Special Counsels Jack Smith’s and Robert Mueller’s teams — argued in a hearing earlier this month that “There is no indictment,” and that the expiry of the statute of limitations is “tantamount to a complete bar” to prosecution.Pursuing a new indictment against Ms. James would be free of the statute of limitations complications that could snarl the case against Mr. Comey. Other challenges, though, would remain. ABC News reports that Ms. Halligan’s predecessor, Erik Siebert, along with other members of the Eastern District of Virginia, judged that the cases against Mr. Comey and Ms. James were not robust enough to try. Mr. Siebert’s resistance contributed to Ms Halligan’s elevation as the second consecutive interim prosecutor in the Old Dominion.Judge Sol Wachter’s maxim has it that a prosecutor worth her salt could “indict a ham sandwich” with ease. Some 95 percent of grand juries do hand up charges. Yet convening a new grand jury to indict Ms. James again on bank fraud might not be straightforward. The one that indicted Ms. James in September initially declined to charge her on the three counts prosecutors sought. The ensuing confusion led to allegations that the 12 jurors who voted to indict did not see the final edition of the document.Recalcitrant juries have emerged in recent months as a surprising obstacle for the DOJ, with Washington DC grand juries refusing to indict people accused of, for instance, throwing a sandwich as a law enforcement officer. NBC News reported in September that “it is rare for a federal grand jury to decline to indict, but it’s become an emerging trend.” If Ms. Bondi decides to forgo seeking a new indictment and instead to focus on an appeal, it could be because an indictment in hand — even a dismissed one —could be better than one that has to be earned anew.

Pam Bondi Weighs Aggressive Move To Restart Prosecutions of Letitia James and James Comey: Charge Them Again With a New Prosecutor

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