A potential second Comey indictment could face a new challenge with the Statute of Limitations

The Department of Justice is reportedly evaluating the possibility of issuing a new indictment against James Comey after a judge last week dismissed his previous case, citing the improper appointment of prosecutor Lindsey Halligan. The dismissal was without prejudice, leaving the door open for charges to be brought by a properly appointed prosecutor.

However, a renewed indictment may face significant legal hurdles beyond the appointment question. At the time of dismissal, several of Comeys pretrial motions were still unresolved, including his claim that the charges, initiated under pressure from former President Donald Trump and brought by Halliganwho lacked prior prosecutorial experiencewere constitutionally vindictive.

Another critical challenge is the statute of limitations. Comeys defense could argue that new charges are barred, as Halligan barely filed her indictment before the statute of limitations expired in September. This timing issue was highlighted by U.S. District Judge Cameron McGowan Currie, who rejected Attorney General Pam Bondis attempt to retroactively validate Halligans appointment, noting that the statute of limitations for charging Comey over his 2020 Senate testimony had already expired.

Currie noted in a footnote that while indictments generally pause the statute of limitations, this does not apply to invalid indictments. The DOJ had argued that Bondi could have authorized a new indictment within six months of dismissal under federal law, making her retroactive approval valid. Currie rejected this, pointing out that the law only applies after a case is dismissed, not while an indictment is still pending.

With the case now dismissed and the DOJ reportedly considering new charges, federal law 18 U.S. Code 3288 could become relevant. This statute allows prosecutors six months to refile felony charges if an indictment is dismissed after the limitations period expires. Prosecutors had emphasized that any reason for dismissal, including an invalid appointment, qualifies for this extension.

Comeys lawyers, however, argue that the law also bars new indictments if dismissal occurred due to some other reason that would bar a new prosecution. They maintain that an illegally secured indictment days before the statute of limitations expired constitutes such a reason, potentially preventing a new prosecution.

If Comey is indicted again, the DOJ would likely argue the law allows extra time, while his defense would claim the statute of limitations has already run, as if the Halligan indictment never existed. Ultimately, this issue would need to be resolved in court before a new case could proceed.

Even if the statute of limitations is navigated, Comeys unresolved pretrial claims remain, alongside the challenge of proving guilt beyond a reasonable doubt. Reviving the case would also require advancing past a grand jury, a step that has been politically complex for the Trump-era DOJ.

Judge Currie also dismissed a separate case Halligan brought against New York Attorney General Letitia James, though the statute of limitations may not be an obstacle if charges were refiled against her. However, any unresolved pretrial arguments would still need to be addressed by the DOJ.

Author: Olivia Parker