🔗 Share this article

Two high-profile critics of former President Trump achieved major court wins on Monday when a US judge threw out the federal indictments against them.

Over recent weeks since their indictments, former FBI Director James Comey and NY AG Letitia James have maintained fiercely that they are innocent, claiming that the president and justice department are simply singling out them for retaliation.

US District Judge Cameron Currie tossed the charges in their cases due to prosecutor Lindsey Halligan's improper assignment as US attorney. But she also left open the possibility for the government to try again.

• Judge dismisses cases against ex-FBI director Comey and New York AG James
• Federal judge states DOJ errors may have tainted Comey case
• What is former FBI head James Comey accused of?

Comey admitted that likelihood after the decision, saying he thinks the former president will probably come after him once more.

And White House spokeswoman Abigail Jackson appeared to agree: This isn't the final word on this matter.

But the DOJ faces significant obstacles to successfully prosecute both after this setback, and legal analysts hesitate to predict what could occur next due to the cases' unprecedented nature.

It feels to me like unexplored legal ground, said Kay Levine, law professor at Emory University.

Could the justice department appeal?

The Department of Justice can contest Judge Currie's ruling before a federal appeals court. In this case, that would be the Fourth Circuit Appeals Court.

Attorney General Pam Bondi signaled she would pursue this option, pledging to use all available legal action, including an expedited appeal.

In other cases, the former administration has strongly challenged unfavourable rulings, taking cases from trial courts and sometimes fast-tracking its petitions up to the US Supreme Court.

Attorney Abbe Lowell, an attorney representing James, vowed to keep fighting any further politically motivated charges through all legal avenues.

If there is an appeals process, the justice department probably would have its own lawyers argue the case, making Halligan's role in the appeal uncertain.

Could there be fresh indictments?

The federal prosecutors charged Comey with lying to lawmakers and obstructing justice. Federal prosecutors indicted Letitia James with bank fraud and making false statements to a financial institution.

Each entered not guilty pleas. Besides claiming Halligan's appointment was invalid, they also asserted to be targets of vindictive prosecution.

With the original indictments thrown out (though, of course, appeals could change that), the DOJ might try to convene fresh grand juries and secure new indictments.

As far as everything I've seen, a new prosecutor could bring James' case to a different grand jury and get a fresh indictment, stated Ms Levine.

But legal expert John Day, president of the American College of Trial Lawyers, said it could be a complicated path – especially in Comey's case.

I can tell you it will be strongly disputed, whether Mr Comey's case can be re-indicted if a lawfully appointed prosecutor is assigned and is can obtain an indictment.

He described the tangle of lawyers, judges, and legal filings involved as a procedural morass with no easy solutions.

It could be more difficult for the government to try to file the identical accusations against James Comey.

One problem is the statute of limitations – the deadline that government lawyers had to charge Comey for these particular claims – which ended at the close of September. However, the dismissal of the charges would trigger a six-month grace period for the justice department to refile the case.

Even so in that case, his lawyers said it plans to contend the prosecution is past the deadline.

The decision further indicates that because the charge is invalid, the time limit has run and there can be no further indictment, attorney Patrick Fitzgerald said on Monday.

What happens to prosecutor Lindsey Halligan?

In both decisions on the charges against James and Comey, Judge Currie was direct: Halligan was wrongly appointed.

Judge Currie wrote in the James ruling that the Attorney General's attempt to install Halligan as Acting US Attorney for the Virginia Eastern District was unlawful.

As a result, she lacked legal power to file the charges, the judge wrote.

Federal prosecutors are proposed by the president and require US Senate confirmation. US laws govern how individuals can be appointed on a interim basis, but Judge Currie found that Halligan's assignment had violated these laws.

That leaves Halligan's position on future cases against both individuals, again, uncertain.

The ruling also could cast a shadow on any other cases Halligan has prosecuted in the Virginia Eastern District where she serves.

But Bondi said on Monday that she designated Halligan a special US attorney and commended her work as excellent.

The administration maintained its position that Halligan's appointment was legal, press secretary Karoline Leavitt told reporters on Monday.