With this huge news (“Judge tosses cases against Comey and James, rules prosecutor appointment unlawful”) coming out a little while ago, see below for an excellent analysis by Fairfax County-based attorney James Abrenio of today’s “opinion by a Federal Judge in the Eastern District of Virginia dismissing the Indictment against Former FBI Director James Comey.” Bottom line, as James Abrenio points out, “the Court found that the US Attorney who signed Mr. Comey’s indictment, Lindsey Halligan, was not properly appointed – therefore, the indictment was unlawful.” For more detailed analysis, see below for the video and a few highlights (bolding added by me for emphasis). Also see here for the full opinion.
- “This Comey case, obviously the Eastern District of Virginia, while my firm, again, we’re mostly in state court. It’s a local news story even though it’s obviously national, and it’s historic given the fact that it’s pretty clear that President Trump directed US attorney Halligan or Pam Bondi to…indict Mr. Comey…And so this opinion gets into that.”
- “And you have here Cameron McGowan Currie, senior US United States District Judge, sitting by designation. So that is who entered the order.”
- “So just to start, there was a quick summary, just so…the judge can can cut to the chase. September 25th, Lindsey Halligan, a former White House aid with no prior prosecutorial experience. And just to be clear, want to be clear, the fact that that’s pointed out, that’s a big deal. Essentially, you can kind of see where the judge is already going with it, and why the judge is critical. A big part of this question is not just about how she handled the grand jury, but whether or not she was properly appointed. And that’s going to be a big basis for this motion to dismiss.”
- “So getting back to it again, September 25th, Lindsey Halligan, a former White House aid with no prior prosecutorial experience, appeared before a federal grand jury in the Eastern District of Virginia, having been appointed by the interim US attorney by the attorney general, that’s Pam Bondi, just days before Ms. Halligan secured a two-count indictment charging former FBI director James Comey with making false statements to Congress and obstructing a congressional proceeding….’And because Ms. Halligan had no lawful authority to present the indictment, I will grant Mr. Comey’s motion to dismiss without prejudice.‘”
- “Okay, so that is the judge saying no dice here. She was never properly appointed. Therefore, it’s dismissed. Now, you noticed the term of art ‘without prejudice’. What that means in law is essentially, in theory, the government can rebring a charge when a charge is dismissed without prejudice meaning it’s not a done deal. Now my understanding of the facts of this case, part of the reason Miss Halligan was appointed and kind of ran through the grand jury system without anybody to essentially hold her hand uh was the timing of this. it sounded like the statute of limitations was really running, I want to say from my understanding there was only a day or two left. So this was really a last-ditch effort to get Mr. Comey charged. So I suspect from a practical standpoint the ability for the government to recharge this is effectively nil. But we’ll see. Hopefully it stands but but obviously we’ll see.“
- “We’re only going to focus on Mr. Comey’s case here, but it sounds like that case [against Letitia James] just got dismissed as well for the same reason.“
- “[Former VA House Speaker] Todd Gilbert was appointed as a US attorney. He resigned his elected official position and then apparently I think it was like a week later he ended up stepping down because it sounded like essentially Bondi was ordering him to do things that he didn’t want to do, trying to install people that he didn’t want to install. So hats off to him for for stepping up. But obviously Trump is not happy about that. And Trump is referencing Tim Kaine and Mark Warner who pushed Mr. Gilbert.“
- “I just want to be clear because I think a lot of times as we in the public are experiencing one of the most, you know, I’m going to leave it at unique presidencies of our lifetimes. One of our most unique political eras of our lifetime. I for one am often left with thinking, you know, we have a president that can constantly say things that simply have no impact on law and on the law of order and what is just and right. And what this court is saying, if you’re going to make these tweets, they’re going to matter. And so here you have a judge literally pasting that into their order dismissing the very indictment that Donald Trump wanted against James Comey. So that’s a big deal. I just want to be clear about that. That’s a big deal. That is the court saying these facts matter and what Donald Trump says actually matters.”
- “It seems to me that it’s becoming pretty clear, or maybe it’s already been very clear, that you had no line prosecutor or no prosecutor in that office willing to stand up with her because the charges in this case were so questionable that I frankly think no attorney wanted to put their name onto it…We have all these ethical obligations. As a prosecutor, they also have ethical duties beyond just what normal attorneys is. And the primary one is to seek justice. What does that mean? That means that you don’t present grand jury indict you don’t present indictments to a grand jury, you don’t ask them to indict individuals unless you have a good faith belief that there is sufficient evidence, probable cause to go forward and you’re going to present that case fairly…I’ve never been a prosecutor, but they have ethical duties when they’re doing these grand jury cases. Because nobody else is in the room. There’s no defense attorney to cross-examine. There’s no defense attorney to argue why there’s not probable cause. So there are special ethical obligations that prosecutors maintain. And from the best that I can tell from what I’m seeing being reported, nobody wanted to put their name on this thing because they were concerned. They should be concerned about the ethical obligations there. And whether…we’ll figure out what that ultimately means for Ms. Halligan, we’ll figure out actually how I presume how she actually felt. Maybe she believed that there was good faith. Maybe her lack of experience was taken advantage of. Maybe it’s just purely political and it’s that cynical. But I do think at some point there will need to be questions asked how this happened.”
- “Again, this is the government kind of playing games and I think the court is calling them out on it. This is federal court. This is not something you know, I practice in state court. To be clear, when you present in state court, the judge is taken very seriously. But in federal court, it’s at a different level. They don’t play around and you can tell that the judge is getting frustrated here.”
- “So essentially Pam Bondi is trying to essentially cover her butt…”
- “So what the court is essentially saying is, look, this isn’t rocket science, it’s really straightforward stuff here, the language is very unambiguous…”
- ‘And then it gets into whether or not the dismissal with will be without prejudice…And so there it is. It’s pretty straightforward. The indictment is dismissed, obviously without prejudice as the court made clear. The question really is going to be, does the government have enough time to try to bring a new indictment. Frankly, I think it’s practically speaking that’s just going to be impossible. Who knows with this administration what they’re going to try to do. But it’ll be interesting to see. But nonetheless I’m glad that the court reached this decision…”
- “If you’ve worked in the criminal justice system for any amount of time, one thing that is strikingly apparent is the world is ripe for abuse by government actors. It happens a lot. And so there’s just a standard always questioning, needing to question what the government is doing in any particular case. But this is a different level where you have a president openly ordering, effectively ordering an individual to be prosecuted who is a political foe. And it’s clear from that tweet or whatever you want to call it…it’s clear that this was a vindictive prosecution. And you know, had it not been dismissed for this reason, it would have been interesting to see that litigated. But it was clear that President Trump wanted this prosecution happen, it was clear that Pam Bondi…went along with it. And it was clear that Lindsey Halligan in my view was used in order to get this end. Whether knowingly or unknowingly, I don’t know. I don’t know enough about her. I’m not going to speak on her behalf.”
- “But what I will say is, if you are a young attorney out there and somebody’s telling you to do stuff that doesn’t feel right in the gut, don’t do it. It’s not worth your license. It’s not worth your reputation. Maybe if you’re a President Trump influencer and you get a bunch of money, maybe it’s worth it to you. Personally, I came to the practice of law because I wanted to help folks because I believed in the Constitution. I believe in the law, whatever that means. But ultimately, I believe in our system. How flawed it may be, I believe in it. And that’s too important for young attorneys. Power is not worth it. It’s not worth it. Maybe, you know, maybe there’s money coming down. I can’t understand why folks are going down that road, but it is what it is. But at the end of the day, if you’re like me, you got to look your family in the face and say, ‘did did I do the right thing today?’ And you know, if somebody’s asking you to do something that is unethical, that is unlawful, don’t do it.”
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