Former FBI Director James Comey is photographed on April 13, 2018 in Washington, D.C.

Dismissed indictments; two grand juries refusing to issue new charges; a judge blocking key evidence from being used for a fresh case: in trying to prosecute key targets of President Donald Trump, the Justice Department has faced failures on a scale rarely seen in federal prosecutions.

The most dramatic recent setback was a second federal grand jury's refusal on Dec. 11 to indict New York Attorney General Letitia James, after an earlier grand jury rejected the Justice Department's proposed charges last week. Abbe Lowell, a prominent lawyer who represents James, described the repeat failure as "unprecedented."

Shortly before that, earlier indictments against James and former FBI Director James Comey were thrown out, and a judge ruled that the DOJ can't use evidence – at least for now – that was key to its first indictment against Comey.

The latest developments exacerbate the mounting struggles Trump administration lawyers have faced in trying to prosecute Comey and New York Attorney General Letitia James. The president called for prosecuting both of them, as well as Sen. Adam Schiff (D-Calif.) in a Sept. 20 social media post.

"This is an embarrassment," Neama Rahmani, a former federal prosecutor, told USA TODAY. "The last thing you want to be as a prosecutor is to be on the defensive, and that's exactly what's happening here."

A DOJ investigation into Schiff has stalled, according to an NBC News report, which cited four anonymous sources familiar with the matter. Multiple media reports suggest federal investigators are now probing how the Schiff investigation has been handled.

The Justice Department declined to comment about its record in cases against Trump's targets.

Indictments dismissed after mounting legal challenges

A federal grand jury charged Comey Sept. 25 with lying to Congress and obstructing a congressional proceeding during testimony he gave to a Senate committee on Sept. 30, 2020. A separate federal grand jury charged James Oct. 9 with bank fraud and making false statements to a financial institution.

Trump's vendetta against both of them goes back years. In 2017, he fired Comey as head of the FBI, which was investigating possible contacts between the 2016 Trump campaign and the Russian government. Afterward, Comey became an outspoken critic of Trump. James brought a civil fraud lawsuit against Trump in 2022, alleging he engaged in years of fraud as a real estate mogul.

Earlier this year, longtime prosecutors – including the interim U.S. attorney for the Eastern District of Virginia, who was appointed after Trump took office in January – reportedly concluded the evidence was too weak in both cases to bring charges.

Trump then posted on social media that he fired the U.S. attorney, and recommended Attorney General Pam Bondi install Lindsey Halligan instead, his former personal lawyer, who had no prosecutorial experience. Bondi took that step within days, and Halligan secured indictments against both Comey and James.

Almost from the get-go, the cases were hit with mounting hurdles.

Comey and James each brought motions arguing the prosecutions were motivated by Trump's personal animus, and therefore unconstitutional. James alleged the government engaged in unconstitutionally "outrageous" conduct, such as removing career prosecutors and ethics officials who stood in the way of bringing charges. Comey said his case arose from misconduct before the grand jury, including failing to present the grand jury with the final indictment, and should therefore be tossed.

Magistrate Judge William Fitzpatrick, who was appointed to his position by other judges, wrote in Comey's case that there was evidence of a "disturbing pattern of profound investigative missteps." He said the government may have violated the Fourth Amendment's protections against unreasonable searches and seizures when it obtained evidence, among other issues.

In late November, Judge Cameron McGowan Currie, a Clinton appointee, erased all the charges against both Comey and James after concluding that Halligan was unlawfully appointed.

The end result is that the prosecutions haven't amounted to much in court – even if they have made Comey and James' lives more difficult.

"So far, I don't think the federal government DOJ has had much success at all except to harass them, which is maybe the point," Carl Tobias, a law professor at the University of Richmond, told USA TODAY.

Multiple re-indictment attempts against James fail

The Justice Department's setbacks in the cases against Comey and James didn't end there.

While Bondi vowed to appeal the dismissals, the department soon took a different approach – trying to move on from the issues with Halligan securing the original indictments by seeking a new indictment against James.

The indictment process before federal grand juries heavily favors prosecutors. They, but not the defense team, are present. They only need to convince a majority of the jurors to indict. They only need to show their allegations are probably true. And the standards for putting evidence in front of jurors are lower than at trial.

A conviction at trial, by contrast, requires a jury to unanimously conclude the defendant is guilty beyond any reasonable doubt.

However, on Dec. 4, a federal grand jury rejected a prosecution request to re-indict James. That, according to multiple former prosecutors, suggests the evidence against James is weak.

Mitchell Epner, a former federal prosecutor, estimated he sought indictments well over 100 times during his three years in the New Jersey U.S. attorney's office, and never failed to get one. He said the office as a whole sought thousands of indictments during that time and he only knew of one failure.

To present a case to two different grand juries in a week and fail to get charges both times "is humiliating and a repudiation of the prosecution," Epner told USA TODAY.

Rahmani estimated he obtained grand jury indictments against about 100 defendants during his time as a federal prosecutor, and never once had a grand jury fail to indict.

"If you can't convince the grand jurors, there's no way you're going to be able to convince trial jurors," he said.

Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan under President Barack Obama, said in an email that prosecutors' ethical duties prohibit them from filing criminal charges when they probably won't get a conviction at trial.

"When prosecutors are selected based on loyalty rather than experience and integrity, this is the sort of garbage we can expect," McQuade said.

DOJ blocked from using evidence for new Comey indictment

The DOJ has also suggested it may seek to re-indict Comey. In a court filing Dec. 9, prosecutors asked Judge Kollar-Kotelly to dissolve the temporary block she put on their ability to use the same evidence Halligan used when she secured charges against Comey the first time.

Kollar-Kotelly ruled Dec. 6 that keeping the evidence, which the government initially obtained during a separate 2017 investigation, probably amounted to an unconstitutional search or seizure.

Kollar-Kotelly could issue a new ruling removing or extending the temporary block Dec. 12, when it's set to expire.

Even if the Justice Department can overcome that challenge, it faces a further legal hurdle when it comes to whether the deadline has passed for charging Comey.

The first indictment against him came down just five days before the five-year statutory deadline for bringing charges.

The prosecution could argue that a federal law that typically gives the government an extra six months to seek new charges after a federal indictment is dismissed applies. However, a lawyer for Comey, Patrick Fitzgerald, has signaled the defense would disagree. He suggested in a statement after the first indictment was dismissed that, because the indictment was void, it didn't trigger the six-month provision, so Comey can't be re-indicted on the same charges.

"The DOJ and Halligan herself, in particular – they have an egg on their face," Rahmani said. "These are nothing short of some pretty massive failures by the DOJ in these cases."

This article originally appeared on USA TODAY: 'Egg on their face.' Trump's revenge prosecution failures embarrass DOJ

Reporting by Aysha Bagchi, USA TODAY / USA TODAY

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