If we live in an age of legal practices, it is fast becoming a war of attrition. The dismissal of charges against former FBI Director James Comey and current New York Attorney General Letitia James is the latest twist in the controversial prosecutions of Trump antagonists.
James immediately posted a message celebrating the decision, but she may want to focus on the prepositional phrase that follows the word “resign”: “without prejudice.” The government may still be able to revive these matters.
James’ victory lap on social media is a fitting addition to the op-ed, which highlighted President Donald Trump’s social media posts about these cases. U.S. District Judge Cameron Currie noted that Trump had sought charges against these and other individuals shortly before the charges were filed.
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The law seems to have become completely improvisational in the age of Trump. James and Manhattan District Attorney Alvin Bragg adopted very novel legal theories to prosecute Trump in New York, including Bragg’s revival of a capital murder charge and its conversion to a multiple felony charge. Both cases were denounced by experts across the political spectrum as a crude weaponization of the legal process.
Former FBI Director James Comey. When the charges against Comey and James were filed, many of us in the legal profession noticed a number of problems. (Jonathan Ernst/Reuters)
However, James is entitled to all of the due process and procedural protections she denied Trump. These charges were brought to completion in the final days before the statute of limitations expired and proved to be a target-rich environment for the defense.
When the charges against Comey and James were filed, many of us in the legal profession noticed a number of problems. First, the charges against James seemed disjointed after the denial of a key charge. With time running out, Acting U.S. Attorney Lindsey Halligan quickly merged the remaining charges and filed the charges. It was ad hoc and certainly not ideal.
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The biggest problem we identified was Halligan himself. Trump’s former private attorney was named acting U.S. attorney following the removal of her predecessor, Erik Siebert, who reportedly resigned after raising concerns about the legal basis for the charges.
Lindsey Halligan, acting U.S. attorney and former special assistant to the president, speaks with a reporter outside the White House, Wednesday, Aug. 20, 2025, in Washington. (Jacquelyn Martin/AP)
The problem is that a federal statute, 28 USC § 546, governs the appointment of interim U.S. attorneys when a vacancy arises. A president has 120 days to appoint such an official, pending a Senate-confirmed replacement. Siebert had already used that 120-day period, and the law requires the court to appoint the acting U.S. attorney after it expires.
While the Justice Department has argued in good faith that the law can be interpreted more broadly, other judges have supported its plain meaning, including a New Jersey court that disqualified another former Trump personal counsel, Alina Habba, from serving as a U.S. attorney.
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Judge Currie stated matter-of-factly, “Time is up.” She also noted that the rush to file charges followed the president’s social media post expressing anger at the inability to indict these individuals. The president wrote: “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They are all guilty but nothing will be done.”
Later he took down the pole, but the damage had already been done.
There are still questions about whether these charges are selective or vindictive prosecutions. The defendants use the president’s post as Exhibit 1. If Judge Michael Nachmanoff rules that these charges are invalid for other reasons or constitute a selective or vindictive prosecution, there would be no procedural “cure” absent a reversal on appeal.
However, Currie’s decision could be addressed through a new indictment that bears the signature of a duly appointed Assistant U.S. Attorney, as long as the court agrees that the indictment was timely filed.
New York Attorney General Letitia James speaks alongside Governor Kathy Hochul during a press conference in New York City on November 6, 2024, discussing the impact of Donald Trump’s re-election as president. (Lev Radin/Pacific Press/LightRocket via Getty Images)
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None of this means that the suspects are innocent of the underlying criminal offenses. These hasty charges were previously very novel – and novelty is rarely a good thing in a criminal charge.
In particular, some of us have noted that the indictment against Trump’s former national security adviser, John Bolton, in Maryland is the strongest of the three cases. The administration has indicated that it may indeed charge costs.
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Bolton is also expected to make claims of vindictive and selective prosecution.
John Bolton, former US National Security Advisor, leaves the US District Court in Greenbelt, Maryland on Friday, October 17, 2025. (Eric Lee/Bloomberg via Getty Images)
What is clear is that all three cases are likely to remain in the legal system for years to come. They could easily expand into a new government. If that government is led by a Democratic president, all three defendants can count on a pardon from Trump’s successor.
It is equally clear that the government is unlikely to dismiss these cases as damaged goods.
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First, they need a cure. It is unlikely that district courts will agree that presidents can chain indefinite appointments, with each acting U.S. attorney allowed to serve 120 days, as a rotating prosecutorial timeshare. This is especially true when the power to appoint under federal law rests with the district courts.
In other words, while the president and many others may view these three as “guilty as hell,” hell hath no fury like a court scorned.
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