WASHINGTON — More than a week after a federal judge tossed the Trump administration's cases against two of the president's top political foes, the Justice Department is weighing whether to re-indict former FBI Director James Comey and New York Attorney General Letitia James.
And the Justice Department is considering taking that step without the legal complications caused by the previous "unlawful" actions of Lindsey Halligan as the purported top federal prosecutor in the Eastern District of Virginia.
Attorney General Pam Bondi said on Nov. 24 that the Justice Department would file an "immediate appeal" of a federal judge's order dismissing the cases against Comey and James. But prosecutors have yet to do so.
A source familiar with the deliberations said Tuesday that the department is considering seeking new, untainted indictments instead of pursuing the appeals. CNN and Reuters previously reported on the deliberations.
A Justice Department representative declined to comment.
Former prosecutors and legal experts told NBC News that bringing fresh cases might be a cleaner path to pursuing the matter, although both cases will continue to face significant challenges, including arguments that they represent selective and vindictive prosecutions. The five-year statute of limitations on Comey's 2020 testimony before Congress — the basis for his September indictment — has now expired, but a provision of federal law gives prosecutors an extra six months to secure an indictment after it is dismissed in some circumstances.
Even if the Justice Department persuades another federal grand jury to indict Comey, a core issue will be whether there was an initial indictment, given that a judge found that Halligan — who took the unusual step of obtaining the indictment on her own — was unlawfully appointed. Time is less essential in James’ case over an alleged mortgage-related issue, as the statute of limitations most likely wouldn’t expire until at least March.
Comey and James both pleaded not guilty.
U.S. District Judge Cameron Currie ruled last month that Halligan "had no lawful authority" to present indictments and that her "defective appointment" had to be set aside.
Comey’s legal counsel Daniel Richman, meanwhile, is asking a federal judge to order property that was seized more than six years ago to be returned to him. In a memorandum in support for return of his property, Richman’s lawyers said the government "conducted a new warrantless search of Professor Richman’s files in September 2025 in contravention of clear constitutional rules and the attorney-client privilege.”
President Donald Trump fired Comey as FBI director in 2017.
Magistrate Judge William Fitzpatrick found in the Comey case last month that the government “likely” seized material outside the purpose and scope of its original search warrants. Attorneys for Richman say the government’s conduct “has deprived Professor Richman of his constitutional rights."
“The Court should grant Professor Richman’s motion and order the return of the files at issue, as well as any copies thereof, and enjoin the government from making any further use of the improperly seized or retained materials,” his attorneys wrote.
A federal judge asked Richman on Tuesday to file a motion for a temporary restraining order before she rules.
