{"id":137607,"date":"2025-11-25T16:16:06","date_gmt":"2025-11-26T00:16:06","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/11\/25\/is-the-comey-case-barred-by-the-statute-of-limitations-its-complicated-but-also-yes\/"},"modified":"2025-11-25T16:16:06","modified_gmt":"2025-11-26T00:16:06","slug":"is-the-comey-case-barred-by-the-statute-of-limitations-its-complicated-but-also-yes","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/11\/25\/is-the-comey-case-barred-by-the-statute-of-limitations-its-complicated-but-also-yes\/","title":{"rendered":"Is The Comey Case Barred By The Statute Of Limitations? It\u2019s Complicated! (But Also Yes.)"},"content":{"rendered":"

Yesterday, Judge Cameron McGowan Currie tossed the Trump administration\u2019s slapdash effort to criminally prosecute former FBI Director James Comey, noting that the purported U.S. Attorney behind the prosecution had all the legal authority of three raccoons in a trench coat<\/a>. Alas, the role of \u201cKinda Sorta Interim-ish U.S. Attorney for the Eastern District of Virginia,\u201d is not so much \u201creal,\u201d with the statutory authority provided to the actual<\/em> interim U.S. Attorney having expired months ago. Shuffling lawyers in the top job, Judge Currie observed, cannot reset the 120-day cap on staffing a U.S. Attorney\u2019s Office with a placeholder or the executive could keep swapping out cronies ad infinitum<\/em> to permanently avoid the constitutional requirement for Senate confirmation.<\/p>\n

With Halligan proving more confident than the law or her own competence<\/a> could support, Judge Currie found herself with no choice but to ditch both the case against Comey and the equally (pun intended) trumped up charges against current NY Attorney General Letitia James. <\/p>\n

While the dismissals were without prejudice, it likely closes the door on Comey\u2019s case, since the whole reason Halligan scrambled to cobble together an indictment that the grand jury never voted upon<\/a> was the ticking clock of the statute of limitations that would turn the allegations against Comey into pumpkins that week. And now that indictment \u2014 which was already doomed because of the grand jury screwup \u2014 is void from jump because Halligan lacked any more authority than a random person off the street, and the statute of limitations has definitively closed.<\/p>\n

But MAGA social media still has hope:<\/p>\n

\"\"<\/a>
<\/figcaption><\/figure>\n

There\u2019s a six-month extension! See, it says \u201cfor any reason\u201d right there! Now, even though this case would\u2019ve been time-barred within hours of the flawed indictment, the government gets another half a year to get its act together. Assuming they can convince the Senate to confirm someone dumb enough to bring the case.<\/p>\n

Except\u2026 no.<\/p>\n

Despite the hope they\u2019re pouring into this \u201cfor any reason\u201d language, the problem facing the government is that Judge Currie didn\u2019t \u201cdismiss\u201d the indictment so much as declare that there never was an indictment in the first place<\/em>. As she explains in footnote 21, even though \u201cfake prosecutors\u201d are \u2014 mercifully \u2014 not something the justice system historically dealt with very often, we actually do have caselaw covering how to handle this specific six-month extension statute in light of a void indictment:<\/p>\n

\n

Generally, \u201c[t]he return of an indictment tolls the statute of limitations on the charges contained in the indictment.\u201d United States v. Ojedokun<\/em>, 16 F.4th 1091, 1109 (4th Cir. 2021). \u201cAn invalid<\/em> indictment,\u201d however, \u201ccannot serve to block the door of limitations as it swings closed.\u201d United States v. Crysopt Corp.<\/em>, 781 F. Supp. 375, 378 (D. Md. 1991) (emphasis in original); see<\/em> also United States v. Gillespie<\/em>, 666 F. Supp. 1137, 1141 (N.D. Ill. 1987) (\u201c[A] valid<\/em> indictment insulates from statute-of-limitations problems any refiling of the same charges during the pendency of that valid indictment (that is, the superseding of a valid indictment). But if the earlier indictment is void,<\/em> there is no legitimate peg on which to hang such a judicial limitations-tolling result.\u201d (emphasis in original)). <\/p>\n<\/blockquote>\n

Here, the statute of limitations collapsed before any government official with legal authority even tried to get an indictment. The indictment doesn\u2019t even exist. <\/p>\n

This is the reading Comey\u2019s lawyers endorse<\/a>, and it\u2019s the only one that makes any sense. The alternative would incentivize the government to hire an intern off Fiverr to turn in a fake indictment the day before the limitations period runs to avoid the law. Perhaps fittingly, the alternative reading exhibits the same core bad faith as repeatedly stacking \u201cinterim\u201d appointments to avoid a statute capping the role at 120 days. Just as it can\u2019t be the law that the executive can forever shuffle lawyers to escape the Senate\u2019s constitutional role, they can\u2019t constantly file void documents to prolong the statute of limitations just by slapping the word \u201cindictment\u201d on them.<\/p>\n

Earlier<\/strong>: Lindsey Halligan Manages To Lose Two Cases At Once, Which Is Honestly Impressive<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Is The Comey Case Barred By The Statute Of Limitations? It\u2019s Complicated! (But Also Yes.)<\/a> appeared first on Above the Law<\/a>.<\/p>\n

Yesterday, Judge Cameron McGowan Currie tossed the Trump administration\u2019s slapdash effort to criminally prosecute former FBI Director James Comey, noting that the purported U.S. Attorney behind the prosecution had all the legal authority of three raccoons in a trench coat<\/a>. Alas, the role of \u201cKinda Sorta Interim-ish U.S. Attorney for the Eastern District of Virginia,\u201d is not so much \u201creal,\u201d with the statutory authority provided to the actual<\/em> interim U.S. Attorney having expired months ago. Shuffling lawyers in the top job, Judge Currie observed, cannot reset the 120-day cap on staffing a U.S. Attorney\u2019s Office with a placeholder or the executive could keep swapping out cronies ad infinitum<\/em> to permanently avoid the constitutional requirement for Senate confirmation.<\/p>\n

With Halligan proving more confident than the law or her own competence<\/a> could support, Judge Currie found herself with no choice but to ditch both the case against Comey and the equally (pun intended) trumped up charges against current NY Attorney General Letitia James. <\/p>\n

While the dismissals were without prejudice, it likely closes the door on Comey\u2019s case, since the whole reason Halligan scrambled to cobble together an indictment that the grand jury never voted upon<\/a> was the ticking clock of the statute of limitations that would turn the allegations against Comey into pumpkins that week. And now that indictment \u2014 which was already doomed because of the grand jury screwup \u2014 is void from jump because Halligan lacked any more authority than a random person off the street, and the statute of limitations has definitively closed.<\/p>\n

But MAGA social media still has hope:<\/p>\n

\"\"<\/a>
<\/figcaption><\/figure>\n

There\u2019s a six-month extension! See, it says \u201cfor any reason\u201d right there! Now, even though this case would\u2019ve been time-barred within hours of the flawed indictment, the government gets another half a year to get its act together. Assuming they can convince the Senate to confirm someone dumb enough to bring the case.<\/p>\n

Except\u2026 no.<\/p>\n

Despite the hope they\u2019re pouring into this \u201cfor any reason\u201d language, the problem facing the government is that Judge Currie didn\u2019t \u201cdismiss\u201d the indictment so much as declare that there never was an indictment in the first place<\/em>. As she explains in footnote 21, even though \u201cfake prosecutors\u201d are \u2014 mercifully \u2014 not something the justice system historically dealt with very often, we actually do have caselaw covering how to handle this specific six-month extension statute in light of a void indictment:<\/p>\n

\n

Generally, \u201c[t]he return of an indictment tolls the statute of limitations on the charges contained in the indictment.\u201d United States v. Ojedokun<\/em>, 16 F.4th 1091, 1109 (4th Cir. 2021). \u201cAn invalid<\/em> indictment,\u201d however, \u201ccannot serve to block the door of limitations as it swings closed.\u201d United States v. Crysopt Corp.<\/em>, 781 F. Supp. 375, 378 (D. Md. 1991) (emphasis in original); see<\/em> also United States v. Gillespie<\/em>, 666 F. Supp. 1137, 1141 (N.D. Ill. 1987) (\u201c[A] valid<\/em> indictment insulates from statute-of-limitations problems any refiling of the same charges during the pendency of that valid indictment (that is, the superseding of a valid indictment). But if the earlier indictment is void,<\/em> there is no legitimate peg on which to hang such a judicial limitations-tolling result.\u201d (emphasis in original)). <\/p>\n<\/blockquote>\n

Here, the statute of limitations collapsed before any government official with legal authority even tried to get an indictment. The indictment doesn\u2019t even exist. <\/p>\n

This is the reading Comey\u2019s lawyers endorse<\/a>, and it\u2019s the only one that makes any sense. The alternative would incentivize the government to hire an intern off Fiverr to turn in a fake indictment the day before the limitations period runs to avoid the law. Perhaps fittingly, the alternative reading exhibits the same core bad faith as repeatedly stacking \u201cinterim\u201d appointments to avoid a statute capping the role at 120 days. Just as it can\u2019t be the law that the executive can forever shuffle lawyers to escape the Senate\u2019s constitutional role, they can\u2019t constantly file void documents to prolong the statute of limitations just by slapping the word \u201cindictment\u201d on them.<\/p>\n

Earlier<\/strong>: Lindsey Halligan Manages To Lose Two Cases At Once, Which Is Honestly Impressive<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Is The Comey Case Barred By The Statute Of Limitations? It\u2019s Complicated! (But Also Yes.)<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Yesterday, Judge Cameron McGowan Currie tossed the Trump administration\u2019s slapdash effort to criminally prosecute former FBI Director James Comey, noting that the purported U.S. Attorney behind the prosecution had all the legal authority of three raccoons in a trench coat. Alas, the role of \u201cKinda Sorta Interim-ish U.S. Attorney for the Eastern District of Virginia,\u201d […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-137607","post","type-post","status-publish","format-standard","hentry","category-above_the_law"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/137607","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=137607"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/137607\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=137607"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=137607"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=137607"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}