Statute of Limitations Looms Over Any New Indictment of James Comey

The Justice Department is reportedly considering whether to seek a new indictment of former FBI Director James Comey after a federal judge dismissed the earlier charges on the ground that the prosecutor who brought them, Lindsey Halligan, had been unlawfully appointed. The dismissal was entered without prejudice, leaving open the possibility that a properly authorized prosecutor could refile charges.

Beyond the appointment question, a central legal battleground would be the statute of limitations. Halligan obtained the initial indictment in September, just before the limitations period expired for allegations tied to Comey’s 2020 Senate testimony. Comey’s lawyers argue that any new charging attempt would be time-barred and that the Halligan indictment should be treated as if it never legally existed.

U.S. District Judge Cameron McGowan Currie rejected Attorney General Pam Bondi’s attempt to retroactively ratify Halligan’s appointment, explaining that Bondi acted after the statute of limitations had already run. In a footnote, Currie noted the general rule that an indictment pauses the statute of limitations — but only if the indictment is valid when filed.

The Department of Justice points to 18 U.S.C. § 3288, a federal statute that gives prosecutors six months to refile felony charges after an indictment is dismissed "for any reason after the period prescribed by the applicable statute of limitations has expired." The DOJ has argued that the law permits a six-month window even when the earlier indictment was defective, including because of a flawed appointment.

Comey’s team counters by invoking the same statute’s carve-out that forbids refiling "where the reason for the dismissal was the failure to file the indictment ... within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution." They contend that securing an indictment through an illegal appointment days before the limitations deadline is precisely the type of reason that should preclude a new prosecution.

The dispute therefore turns on competing interpretations of § 3288: whether it authorizes a six-month refiling window in these circumstances or whether the particular facts here—which include an invalid appointment timed to fall within the limitations period—should bar refiling altogether. That question is likely to require fresh litigation and an explicit judicial ruling if prosecutors seek a new indictment.

Any renewed effort to charge Comey would face other obstacles as well. Before the dismissal he had outstanding pretrial motions, including a claim that the charges were unconstitutionally vindictive. The government would also confront ordinary trial challenges — including proving guilt beyond a reasonable doubt — and the practical step of persuading a grand jury to return new charges.

Judge Currie also dismissed an indictment Halligan brought against New York Attorney General Letitia James. That matter would not present the same statute-of-limitations issue if refiled, but it too included unresolved pretrial claims that the government would need to address.

Next steps could include a DOJ appeal of Halligan’s disqualification, new grand-jury proceedings, or fresh litigation over § 3288 and the effect of the earlier defective indictment. Any of those paths would determine whether the prosecution gets another opportunity to proceed or whether the statute of limitations — and the circumstances of the original appointment — permanently foreclose a new case.