So, the cases against James and Comey have been dismissed because Pam Bondi ignored the Appointments Clause of the Constitution.
Arguably she could have appointed Halligan as Special Counsel (a la Jack Smith). That might have been challenged on grounds Aileen Cannon used (no, her ruling was not precedent), and Comey certainly would have challenged the indictment as he did (which is now moot). But she used the statute, which allows only one 120 day interim appointment without Senate approval. That was used up by the guy Trump forced out, because that interim wouldn’t do Trump’s bidding, and Halligan would. The judge also ruled that any further appointments for interims have to be made by the EDVA judges, again per the statute. As should have been done before Halligan was appointed. Illegally. But that person probably wouldn’t have gotten us this far. So here we are.
James could still be indicted again. The indictments were dismissed “without prejudice,” meaning new indictments can be brought. (Dismissal with prejudice is granted when a manifest injustice would be done by allowing another case to be filed.) Of course, this new appointee probably won’t indict James. And unless there’s a provision I’m unaware of (always a possibility), Comey is protected by limitations now.
Now, who’s to blame? MAGA wants Bondi’s head on a pike. Emptywheel argues the “Special Prosecutor” appointment would have been more sound. I’m not rock solid on the law regarding special prosecutors, and I’m not a fan of the concept. They tend to find crimes to prosecute, rather than prosecute crimes they find. Jack Smith had grounds to investigate Trump before he was appointed, but Ken Starr gave up on Whitewater early on, and stayed around until he had something Clinton could be impeached on. John Durham pursued Russian disinformation as if it were the Holy Grail, and succeeded at nothing. Lindsay Halligan was handed bogus crimes to prosecute against Comey and James. She also barely had time to indict Comey.
She walked into EDVA and had staff to get her to the grand jury (where she royally screwed up). Special prosecutors get their own staff. Halligan didn’t have the luxury of that much time. She needed staff ready to hand her the paperwork. Whether or not she could have been a special prosecutor, I think the logistics would have worked against her. She’d need her own staff. That would have taken weeks, if not months.
So, where does the buck stop?
With Trump; and not just because he’s at the top.
Bondi was out of time. She probably didn’t want to charge Comey, but it was that or be fired. She had to work through EDVA, and when Siebert resigned rather than indict, she had two choices: appoint Halligan, who would indict; or wait on the judges while the statute of limitations ran out, and accept an appointee who probably wouldn’t indict, either. And get fired by Trump.
The Halligan appointment was never going to pass scrutiny. And maybe Bondi has to quit anyway. It all depends on what Trump sees first on Fox News.
Trump is responsible for this by insisting his “enemies” be prosecuted, because he has the ego and temperament of Eric Cartman. But he’ll never accept responsibility for this (nor would Eric Cartman). Bondi’s job, in the immediate future, rests on whether or not Trump thinks the responsibility for this is getting too close to him.
Or whether he thinks he’s gotten his pound of flesh, or not.
I don’t think Comey can be re-indicted. I don’t think James will be, simply because the next appointee won’t, and the Senate may not be anxious to fill this position soon. Trump has to come up with someone, anyway. That person could indict James, but she still has her defenses, and the case against her is still incredibly weak. The next grand jury might not be interested in it. Possibilities abound.
Trump will either let it go, or demand some heads on Tower Bridge. He probably wishes that wasn’t a metaphor.
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