A day after a federal judge dismissed indictments towards former FBI Director James Comey and New York Attorney General Letitia James, federal prosecutors in Virginia are nonetheless in the darkish on how one can proceed with the tossed cases.
A judge determined Monday that interim US Attorney Lindsey Halligan didn’t have a prosecutor’s authority when she secured the grand jury indictments that President Donald Trump wished of two political foes. Now, assistant US attorneys in her office try to do their jobs with little thought of who’s in the motive force’s seat — with no phrase but on the Justice Department’s subsequent strikes in these high-profile cases towards Comey and James, and little steerage on who’s in cost in the remainder of the lively felony investigations out of the Eastern District of Virginia.
Federal Judge Cameron McGowan Currie dismissed each indictments after she discovered that Halligan’s appointment was illegal.
Currie dominated Monday that every one of Halligan’s actions following her “defective appointment” have been “unlawful exercises of executive power and are hereby set aside.” Both Comey’s and James’ cases have been tossed with out prejudice, that means the prosecutors may convey the identical fees to a grand jury in an try to have them indicted once more.
“There’s panic over what to do,” one individual near the Alexandria, Virginia, prosecutors’ office instructed NCS about making strikes in felony issues in the wake of Monday’s ruling.
Comey was charged in September on two fees of mendacity to and obstructing Congress throughout testimony in late 2020. James was charged in October on two counts of financial institution fraud and making false statements to a monetary establishment. Both Comey and James pleaded not responsible to the fees they have been dealing with.
Top Justice Department officers spent Tuesday debating attainable programs for his or her attraction to take.
Some officers entered the day viewing any effort to attempt to re-indict Comey or save the case as quixotic and sure to fail, given the thorough rejection by the judge.
But Attorney General Pam Bondi’s comments following the ruling Monday — that the Justice Department will take “all available legal action,” together with an “immediate appeal” — made clear the division would try to discover a method to save the Comey fees filed in September, which they proceed to view as legitimate.
For greater than 24 hours, there was a scramble amongst prosecutors who have been left to resolve what strikes they may make in different felony cases going ahead, in line with individuals accustomed to the prosecutors’ office. The Justice Department remains to be, as of Tuesday afternoon, figuring out what’s subsequent in the cases they’ve prioritized towards James and Comey.
At first, on Monday, a few of the prosecutors in the district stopped submitting paperwork in cases all collectively. It was unclear if Halligan’s identify may legally be on them, or who needs to be listed as an alternative as of the highest prosecutors.
Other profession prosecutors in the office questioned about the easiest way ahead with grand juries that have been set to satisfy in Alexandria earlier than Thanksgiving — and whether or not these proceedings may maintain shifting towards indictments throughout this time.
The judge’s ruling that invalidated Halligan’s authority mentioned it was the federal courtroom judges in the district who had authority to nominate a brand new interim US legal professional.
About three hours after the ruling Monday, nevertheless, the deputy felony chief in the office instructed prosecutors to start itemizing the primary assistant of the office, Robert McBride, who had arrived per week earlier than in that job, as the highest prosecutor on case filings.
About an hour later, although, one other official in the office emailed all its staff: “The change to the signature block was premature. Please return to the use of Lindsey Halligan, United States Attorney.”
By the shut of enterprise Monday, the office’s work was nonetheless in flux.
Some filings that had been scheduled earlier than Thanksgiving have been pushed to subsequent week.
While some prosecutors have been not sure of how one can signal their filings, a handful of them on Tuesday filed courtroom paperwork in lively felony issues in the district’s 4 Virginia courthouses that listed Halligan as US legal professional, as they have been directed.
When it involves the cases towards Comey and James, prosecutors feared what would possibly occur if the office tried once more — particularly provided that one of many Justice of the Peace judges on the bench this week had not too long ago slammed Halligan in an opinion. That judge, William Fitzpatrick, had learn the grand jury transcript in Comey’s case and mentioned Halligan and the FBI had made evidentiary and authorized missteps in their interactions with Comey’s grand jurors.
Fitzpatrick can be scheduled to preside in the Justice of the Peace courtroom on Wednesday — when the Justice Department might have extra readability to its subsequent steps in the Comey and James cases, and grand jury exercise in the courthouse may occur.
The Deputy Attorney General’s Office was nonetheless giving little to no authorized steerage on the Department’s considering as of Tuesday afternoon about how one can proceed. The considering divided into a number of attainable paths ahead: Appeal each cases; or try to re-indict Comey or James or each.
Assistant US attorneys engaged on the James case are beneath much less of a perceived charging deadline. Unlike in Comey’s case, the place there was a statute of limitations of September to convey the charged towards them, James’ prosecutors have an extended runway. On Tuesday, they have been in dialogue with Justice Department headquarters on what to do subsequent.
But the Comey case — the centerpiece of a trio of indictments the President wished — got here with completely different points.
While Judge Cameron Currie wrote in dismissing the case that her resolution was “without prejudice,” that means prosecutors weren’t barred from attempting once more, she additionally famous that Halligan’s efforts in the grand jury weren’t legitimate. The judge mentioned meaning there might not have been a legitimate indictment that prosecutors may now appropriate — and the five-year window to convey a cost towards Comey might have closed on the finish of September.
Comey’s protection legal professionals preserve they don’t imagine a brand new indictment is feasible.
James Pearce, a former federal prosecutor and now senior counsel on the Washington Litigation Group, mentioned the judge’s order Monday recommended Comey couldn’t be re-indicted.
“I think the thrust of the opinion suggested that the judge did not believe he could face re-indictment,” Pearce mentioned, including that if he have been a prosecutor on this case, he could be frightened {that a} judge would aspect with Comey’s staff and resolve that the case can’t be indicted once more in any district. Pearce was among the many legal professionals who defended particular counsel Jack Smith’s work in the cases towards Trump, one in all which was equally dismissed when a judge discovered Smith didn’t have authority to convey the case.
Patrick Cotter, one other former federal prosecutor who now practices at UB Greensfelder, mentioned Currie was not express sufficient when addressing the statute of limitations problem, leaving an interpretation open for Comey to be indicted once more shortly on the identical fees.
“In her opinion yesterday, she just didn’t address it. She said, ‘I’m just putting you back where you were the day before Halligan showed up,’” Cotter mentioned.
In the 24 hours after the dismissal of the felony cases towards James Comey and Letitia James, Lindsey Halligan was no the place to be discovered across the office she had led.
Never one to make small speak with profession prosecutors throughout the 9 weeks she served because the interim US legal professional in the Eastern District of Virginia, Halligan gave no path Monday or Tuesday on what to do subsequent after a judge invalidated her authority. The Justice Department was saying they stood behind her nonetheless.
A Justice Department spokesman mentioned Halligan stays the highest prosecutor in the US attorney’s office.
“Yesterday’s order did not remove Lindsey Halligan and as the Attorney General said we intend to appeal,” the spokesman mentioned in a press release Tueday.
Prosecutors in the Eastern District of Virginia, nevertheless, discovered themselves with out readability in their day-to-day duties.
When requested Tuesday if Halligan was nonetheless main the office and how they have been working following the ruling, one prosecutor instructed NCS, with a shrug, “We’re still working.”
Pearce mentioned that “squishy” was a great time period to explain Halligan’s standing as the highest prosecutor in the office.
“I think under the district court’s ruling, Halligan is not validly serving as the US attorney and not validly presiding over the James and Comey cases, but also not validly serving over, kind of anything that’s going on in the office,” Pearce mentioned. “Though the opinions yesterday didn’t purport to address that question, because it was only specific to those two prosecutions.”
Cotter’s view was the identical as Pearce’s, saying that whereas Bondi might have appointed Halligan as a particular legal professional, which is usually a designation any assistant US legal professional can obtain, that’s far completely different from her serving as a US legal professional, a political position ruled by presidential appointment legal guidelines.
“She certainly was not part, legally, of the Department of Justice at the time she obtained these indictments. That’s what the court said,” Cotter mentioned.
What the Alexandria office wants to determine, and quickly
The district courtroom nonetheless hasn’t sworn in a brand new US legal professional.
Some across the courtroom believed Tuesday the judges wouldn’t select a brand new US legal professional, as Currie dominated ought to occur, due to concern the chief department would fireplace that individual. And so Halligan could proceed serving, if the Justice Department retains itemizing her on briefs, regardless of the courtroom orders.
And by Tuesday afternoon, the Justice Department nonetheless hadn’t notified the judges over the Comey and James cases that they deliberate to attraction — usually a easy submitting that may be ready shortly.
Pearce pressured that often, most US attorneys’ places of work are stuffed with profession prosecutors that may proceed to perform usually with out a clear chief. However, with the shortage of a US legal professional, there is probably not somebody in the office making robust coverage selections.
“I would think there is a fair amount of uncertainty about who’s in charge and who’s making those calls at the moment,” Pearce mentioned.
Cotter additionally mentioned that for prosecutors in the Eastern District of Virginia office, morale needs to be low given all they’ve endured over the previous few months — together with the departure of Halligan’s predecessor, Erik Siebert, after dealing with stress to convey cases towards Comey and James.
“I can’t imagine the turmoil at that office, with Siebert having left the way he did, with Halligan coming in now with this,” Cotter mentioned. “It’s just hard to imagine how there’s much morale left after all this.”