A DOUBLE-HEADER! COURT DISMISSES CASE AGAINST LETITIA JAMES! (AND AN ANSWER TO THE STATUTE OF LIMITATIONS QUESTION)
Woohoo! I’ll bet the walls in the White House are being painted red with ketchup right about now! Shortly after the Court dismissed the case against James Comey, the same Court, same Judge, dismissed the case against Letitia James. In fact, same grounds, same reasoning, and nearly the same opinion and order.
Presumably there won’t be another sudden court decision demanding my attention right now, like there was when the Letitia James decision came out while I was in the middle of writing up the James Comey decision, so I’ll have a bit more time to elaborate here.
First, for the most part this order, dismissing the case against Letitia James, follows the exact same reasoning as the case against James Comey. So I’m not going to dwell on that. Suffice to say that Judge Currie finds this administration’s legal prowess… underwhelming.
Instead I’m going to get to the question of the statute of limitations, and then I’m going to highlight something which the Judge made a point of emphasizing having to do with the appointment of U.S. attorneys, Halligan’s appointment as such being defective – a defect which tanked both prosecutions.
Now, as I said in my article about the Comey dismissal, I didn’t know the answer to the question of how the statute of limitations already having run, which generally bars a party from filing a case, is affected by a dismissal without prejudice, which generally allows a party to refile a case. As I said in that piece, logic would suggest that the party *can’t* refile because the statute has run, so that the dismissal without prejudice is a pyrrhic dismissal, as it were. But the Federal Rules of Procedure (both civil and criminal) are *very* complicated. And note that the rules are different for Civil Procedure versus Criminal Procedure.
I did some research, and finally turned up 18 U.S. Code § 3288 which says:
“18 U.S. Code § 3288 – Indictments and information dismissed after period of limitations
Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, or, in the event of an appeal, within 60 days of the date the dismissal of the indictment or information becomes final, or, if no regular grand jury is in session in the appropriate jurisdiction when the indictment or information is dismissed, within six calendar months of the date when the next regular grand jury is convened, which new indictment shall not be barred by any statute of limitations. This section does not permit the filing of a new indictment or information where the reason for the dismissal was the failure to file the indictment or information within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution.”
My reading of this suggests that if they can get a new indictment within 6 months, they can refile. BUT…
That takes me to the thing that Judge Currie highlighted at the end of both the Comey and the James orders dismissing the cases. Remember that the reason that both cases were dismissed was because the Court found Halligan’s appointment defective, essentially making her “not a U.S. attorney”, so she did not have the authority to secure an indictment and file the case.
Said Judge Currie, in the orders:
“The power to appoint an interim U.S. Attorney for the Eastern District of Virginia pursuant to 28 U.S.C. § 546 during the current vacancy lies with the district court until a U.S. Attorney is nominated by the President and confirmed by the Senate under 28 U.S.C. § 541”
This means that either the Court will appoint an interim U.S. Attorney (presumably one less likely to bring bogus cases like the Comey and James cases), or the position will be left vacant until a U.S. Attorney is nominated by Trump *and confirmed* by the Senate, and who knows how long *that* could take – although I suppose it could happen within 6 months.
Notes from the Front members: the Opinion and Order in the Letitia James dismissal is in your inbox.
To protect myself from legal claims of impermissible public republication, and attacks by trolls, among other things, I don’t share documents I find publicly, I make them available privately to Notes from the Front members, along with explanations and insights. You can join below for immediate access – it’s $5 a month and it’s fine to join and then cancel if you only want certain documents.
https://annepmitchell.substack.com/p/a-double-header-court-dismisses-case
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