When a federal judge dismissed charges against former FBI Director James Comey and New York Attorney General Letitia James this week, the decision highlighted questions about the integrity of the Justice Department’s leadership and its handling of politically charged cases. Stanford Law’s Professor Robert Weisberg, JD ’79, a leading expert in criminal law and procedure, explains the original charges, why the cases collapsed, how an unlawfully appointed prosecutor became central to the controversy, and what the episode reveals about the DOJ under Attorney General Pam Bondi.

Why were charges against former FBI Director James Comey and New York’s Attorney General Letitia James dismissed on Monday, November 24?

The charges against Comey and James were brought before the grand jury by Lindsey Halligan, purportedly the Acting United States Attorney for the Eastern District of Virginia. On Monday, [November 24] however, Judge Cameron McGowan Currie held that Halligan did not have legal authority and so the indictments were invalid, especially because Halligan alone had presented the case to the grand jury and signed the indictments.

By the way, both dismissals were designated “without prejudice.” This clearly means, in James’s case, that the Government can refile the charges through a new grand jury proceeding. But that still leaves the question of which U.S. attorney—acting or permanent—properly appointed under the law would be willing to bring the case. The same is true for Comey, with the additional complication that the statute of limitations on his alleged offense expired shortly after Halligan filed the charges. A statute, 18 U.S.C. § 3288, might allow the government another attempt if it re-files within six months of the original charge, effectively backdating it, but that provision may require careful interpretation.

Weisberg discussed these cases (at an earlier stage in the proceedings) in a recent Stanford Legal podcast, where he was interviewed by Stanford Law Professor Pamela Karlan. Listen here.

Why and how was Lindsey Halligan appointed? Do you believe it was an unlawful appointment?

The explanation lies mostly in a complicated statute that deals with vacancies in the position of a head U.S. Attorney. When there is a vacancy in the job, until a new U.S. attorney is nominated by the president and approved by the senate, the president can appoint an acting head, but that person can only serve for up to 120 days. Thereafter, any successor Acting U.S. Attorney must be appointed by a vote of the district judges of that court.

When the vacancy first occurred, the White House appointed a career prosecutor named Erik Siebert as the legitimate acting head, and he served for 120 days. But then, instead of the district judges picking his successor, the White House, on its own, chose Halligan, an insurance lawyer with no prosecutorial experience—perhaps because no experienced prosecutors in that district or any who were otherwise available wanted to bring the charges. That appointment clearly violated the statute as well as the Appointments Clause in Article II, Section 2 of the Constitution.

The judge’s decision on this appointments matter is straightforward because the statute is unambiguous. The Government offered several counterarguments, but the judge dismissed them as unconvincing to the point of absurdity.

Do the charges against Comey and James have merit? Does the DOJ have a strong case?

Neither case is very strong. As for Comey, the DOJ says that at some point when he was FBI director, he instructed an assistant to leak certain information to the press—an act that is not itself illegal—but the Government alleges that Comey later lied about it during a Senate hearing. The factual basis for the claim that he ever gave such an instruction is extremely thin. At best, the evidence suggests he may have approved what the assistant did after the fact without having authorized it beforehand, and even that reading is highly contestable.

As for James, she is charged with mortgage fraud for allegedly designating a second home as her primary residence to obtain a more favorable loan rate. But mortgage paperwork is notoriously complicated and often trips up even the most careful applicants. Some of the loan documentation, together with aspects of James’s own actions, gives the defense a plausible argument that she did not knowingly misstate the use of the residence. Both defendants would therefore have a strong chance of establishing reasonable doubt if the cases ever reached juries.

And then there are the vindictive-prosecution and selective-prosecution claims both defendants have raised, waiting in the wings.

Do you expect the DOJ to appeal Judge Currie’s dismissal?

Yes. The Government is free to appeal the decision in an effort to reinstate Halligan’s authority and, in theory, revive the indictment. Now, we can set aside for the moment whether the indictment would fail on several other grounds that James and Comey have plausibly raised. But in any event, the appellate courts will have a hard time disagreeing with the district judge’s reading of this very clear statute.

What does this say about the state of the DOJ under Pam Bondi and her leadership?

The Halligan debacle makes the DOJ under Bondi’s leadership look like a clown show. While these dismissals are, of course, highly technical, Bondi has done little to dispel the widespread view that she has ceded her prosecutorial discretion to the White House, which appears to be acting out of the president’s personal pique. In the meantime, it isn’t even clear who is actually in authority in the U.S. Attorney’s Office in the Eastern District of Virginia, thanks to the lack of clear leadership from the attorney general.

Robert Weisberg, the Edwin E. Huddleson, Jr. Professor of Law, works primarily in the field of criminal justice, writing and teaching in the areas of criminal law, criminal procedure, white collar crime, and sentencing policy. He also founded and now serves as faculty co-director of the Stanford Criminal Justice Center (SCJC), which promotes and coordinates research and public policy programs on criminal law and the criminal justice system, including institutional examination of the police and correctional systems.