Former FBI Director James Comey and New York Attorney General Letitia James scored major legal victories this week when a judge determined the prosecutor who brought charges against them was serving unlawfully. But the win doesn't mean they're in the clear just yet.

Senior U.S. District Judge Cameron McGowan Currie, an appointee of former President Bill Clinton, dismissed the indictments against both targets of President Donald Trump, ruling that charging documents couldn't stand if the prosecutor who secured them wasn't legitimately appointed.

Attorney General Pam Bondi has said the Justice Department will appeal the ruling, offering one potential lifeline for the cases. But even if DOJ loses that appeal, it could seek new charges against James, and potentially against Comey, too.

"We'll be taking all available legal action, including an immediate appeal," Bondi said at a press conference Nov. 24.

Asked for comment for this story, James' office pointed USA TODAY to James' Nov. 24 statement saying she was "heartened by this victory" and remains "fearless in the face of these baseless charges."

Comey's lawyers and the Justice Department didn't respond to requests for comment.

The Justice Department asked grand juries to indict Comey and James only after Trump posted on social media Sept. 20 that both were "guilty as hell" and should be charged. Trump didn't specify in his post what charges he had in mind.

James sued Trump civilly as New York's attorney general, in a case that threatened to cost the president hundreds of millions of dollars. Comey has been an outspoken critic of Trump since Trump fired him in 2017, as the FBI was investigating Russian interference on Trump's behalf in the 2016 presidential election.

Here's a breakdown of what's next after the two cases were dismissed, including why the Trump administration could still pursue the charges.

Has the Trump administration run out of time?

If the Justice Department wins the appeals the attorney general promised to file, those victories would revive the cases against both James and Comey. But even barring that kind of success, it would still have options to keep pursuing the pair.

Most federal crimes can only be charged if the indictment is brought within a certain time frame. That's true for the charges both James and Comey face.

James was charged with bank fraud and making false statements to a financial institution, crimes that must be charged within 10 years of when they occurred. The original indictment alleges that James committed those crimes from 2020 to 2024, meaning the Justice Department still has plenty of time to seek a new indictment.

Comey, on the other hand, was charged with lying to Congress and obstructing a congressional proceeding, crimes that fall under a five-year deadline for bringing charges. The indictment against Comey alleges he committed those crimes on or about Sept. 30, 2020, meaning the original deadline to bring charges expired at the end of September of this year.

However, there's a federal law that typically gives the government an extra six months to seek new charges after a federal indictment is dismissed. The question is whether that law applies to Comey's situation.

Judge Currie seemed to suggest that law won't help the government bring new charges against Comey. In a footnote in her Nov. 24 opinion, she wrote that, while a valid indictment generally stops the clock and lets the government refile the same charges, an invalid indictment "cannot serve to block the door ... as it swings closed."

Patrick Fitzgerald, a lawyer for Comey, appeared to point to that footnote when he said in a statement following the ruling that the government has run out of time.

"The decision further indicates that because the indictment is void, the statute of limitations has run and there can be no further indictment," Fitzgerald said.

However, not all legal experts have agreed on that interpretation of the law.

Ed Wheelan, who was a Justice Department official during the George W. Bush presidency, posted on X that Currie's footnote struck him as "virtually irrelevant." He noted the law that generally gives the government an extra six months includes an exception for situations in which an indictment was dismissed for a reason "that would bar a new prosecution," but said that exception "would seem not to apply."

Sarah Isgur, who served in the Justice Department during Trump's first presidency but went on to criticize White House interference with the department, said on the "Advisory Opinions" podcast that she believes the law giving an extra six months would apply to Comey's situation.

"I mean, the language in this statute is just so broad," Isgur said. "I don't quite see how (Comey and his lawyers) are going to get around that."

If Halligan is out, who would bring charges?

Even if the Justice Department could theoretically bring new charges, another question is whether its leadership can find someone who will bring them.

Halligan, a former personal lawyer to Trump with no previous experience as a prosecutor, was installed to replace Erik Siebert, the former head of the Eastern Virginia federal prosecuting office, who reportedly expressed skepticism about bringing charges against Comey or James.

Under Judge Currie's ruling, it's up to the U.S. District Court for the Eastern District of Virginia to fill the vacancy at the head of the U.S. attorney's office for that district, until the role can be permanently filled by a presidential nominee approved by the Senate. It remains to be seen if a future appointee would also pursue the charges, and be able to secure indictments from federal grand juries again.

The Trump administration could also seek to have the charges pursued by someone who doesn't head that Virginia prosecuting office. In an attempt to fix any potential defect in how Halligan secured charges initially, Bondi issued an order Oct. 31 appointing Halligan to serve as a "special attorney" authorized to conduct legal proceedings in the Eastern District of Virginia, including specifically the prosecutions against James and Comey. Bondi said in that order that the special attorney appointment was retroactive, and so applied back to Sept. 22.

Judge Currie ruled that Bondi couldn't retroactively fix the problems of Halligan's appointment in that fashion. But that doesn't mean Bondi can't try to install Halligan to helm future prosecutions against James and Comey by designating her a "special attorney."

Other arguments for dismissal

Even if the Trump administration found another way to bring the same charges against James and Comey, that wouldn't mean the charges would make it to trial.

Both James and Comey have argued in motions that their cases should be dismissed because the Trump administration is allegedly pursuing them vindictively and has allegedly engaged in "outrageous conduct." For instance, James alleged that the Trump administration only obtained charges against her after "the systematic removal of ethics officials and career prosecutors who stood in the way."

It's possible that judges in their two cases will decide those motions are dead issues at present, since the indictments were dismissed this week. But even so, the issues could come back to life with new indictments, and potentially with fuller force.

Roger Parloff, a former attorney who covers legal issues for the Lawfare legal publication, said on the "Lawfare Live" podcast that, if Halligan is appointed a "special attorney" simply to prosecute James and Comey, that could strengthen the defense's case.

"It reinforces the view that there's something vindictive and selective about these two prosecutions," Parloff said.

This article originally appeared on USA TODAY: Why Letitia James, maybe also James Comey, could still face charges

Reporting by Aysha Bagchi, USA TODAY / USA TODAY

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