The Justice Department is reportedly weighing whether to bring new indictments against former FBI Director James Comey and New York Attorney General Letitia James, which would mark a shift in strategy after a federal judge threw out both prosecutions on the grounds that interim U.S. Attorney Lindsey Halligan lacked lawful authority to bring them.
Officials are now considering bypassing an immediate appeal and instead returning both cases to grand juries in Virginia, according to multiple reports. The absence of any appeal filing, which requires only a one-page notice, has fueled expectations that the DOJ is preparing to refile the cases rather than attempt to rescue Halligan’s appointment before the U.S. Court of Appeals for the 4th Circuit.
South Carolina Judge Cameron Currie’s ruling last week voided every action Halligan took in the Comey and James matters, including her presentations to Alexandria-based grand juries, and found she was never properly installed as the district’s top federal prosecutor. Attorney General Pam Bondi vowed an “immediate appeal,” though that notice has yet to appear on the appeals court docket.
A re-indictment strategy would provide the DOJ with several options and allow the department to avoid any potentially lengthy waiting period, notwithstanding the possibility that a higher court might agree with Currie’s decision.
Under the Vacancies Reform Act, Bondi could designate Halligan as the “first assistant” in the Eastern District of Virginia, a move that would immediately make her the “acting” U.S. attorney and restore her authority to seek indictments, according to Ethics and Public Policy Center Senior Fellow Ed Whelan. Whelan wrote for the National Review last week that the DOJ could also have Halligan participate as a special attorney while other prosecutors lead the grand jury presentations, which would likely help blunt predictable follow-up challenges to her potential acting role, while maintaining a degree of distance from the cases.
Re-presenting the cases would also allow prosecutors to correct problems that surfaced during Halligan’s initial presentations. The James mortgage fraud case does not face timing barriers related to the statute of limitations and could be revived cleanly.
In September, the Comey grand jury rejected one of the felony counts Halligan sought, and approved the other two with the bare minimum number of votes. Using a new grand jury could eliminate that earlier record, but it also creates the risk of another rejection, a scenario that would be politically difficult for the Trump administration after its aggressive push for the indictments and the subsequent dismissal of two cases during Thanksgiving week.
However, a separate lawsuit against the DOJ, filed by former Comey lawyer Daniel Richman on Nov. 26, could present as an additional wrinkle for the department’s strategy to resume its criminal case against the former FBI director.
Richman, a Columbia University professor who was likely to be a crucial witness in the would-be Comey trial, is asking a federal court in Washington, D.C. to impose an order blocking the DOJ from accessing his online accounts and electronic devices. This move could open the door for a judge to dissect allegations of prosecutorial misconduct that were not fully scrutinized during pretrial hearings in the defunct Comey case.
Moreover, the road to reviving Comey’s indictment is generally more complex and subject to scrutiny because the plaintext and meaning of 18 U.S.C. § 3288 has been subject to interpretation and debate. Whelan has maintained it could be a way for the government to guard against inevitable arguments by defense lawyers who will say the government was time-barred from bringing a new indictment, so long as he’s “reading its convoluted language properly,” he wrote last week.
If new indictments are on the way, it would suggest the DOJ believes § 3288 does give the government an additional six months to refile a case. The initial deadline to file charges against Comey was Sept. 30, 2025, five years after Comey’s testimony to Congress, which served as the basis for charges that he allegedly made false statements and obstructed justice while testifying under oath. Whether that is time-barred is sure to become a hotly contested issue.
Comey’s lawyers contend the clock has fully run out because Halligan’s original indictment was void. Currie signaled possible agreement with the defense in a footnote. However, the statute-of-limitations issue was not a central subject to her ruling, which focused on whether she was lawfully appointed.
Movement over the pair of defunct cases could come sooner rather than later. New indictments could be presented as soon as this week, according to sources cited by Politico and CNN, and FBI Director Kash Patel hinted during an interview over the weekend that “multiple responses” could soon follow the cases being dismissed.
WHAT HAPPENS NEXT AFTER COMEY AND JAMES CASE DISMISSED?
Attorneys for Comey and James maintain that the cases were legally defective and politically motivated. Both pleaded not guilty before the dismissals.
The Washington Examiner contacted the DOJ for comment.
