Comey and James Must Pass Through the Judicial System

The recent federal court decisions dismissing the grand jury indictments voted against former FBI Director James Comey and N.Y.S. Attorney General Letitia James are deeply troubling. They appear to upset the delicate balance between procedural integrity and substantive justice, whether or not one is a fan of either or both Comey or James.

As has been widely reported, according to the judge, the appointment of the interim U.S. Attorney who presented the cases to the grand jury and ultimately signed the bills of indictment they voted – ordinarily enabling the case to move forward to trial – was illegal. She said that her designation on an interim basis violated the constitutional and statutory rules governing interim appointments. The judge then concluded that the indictments must therefore be dismissed.

We have some doubts about the judge’s reasoning. But the Department of Justice has indicated that it will appeal, and perhaps the appeals court – and ultimately the U.S. Supreme Court – may clarify matters, making for a more informed commentary. Yet, even so, there is a common dimension to these cases that makes them particularly noteworthy.

The federal rules of criminal procedure explicitly state that after a federal grand jury votes a “true bill” of indictment, it “shall be signed by the attorney for the government.” But the thing is, this signature is a ministerial act that ensures the authenticity of the document and the government’s intention to proceed with the prosecution based upon the grand jury’s finding.

Moreover “attorney for the government” is defined as including Assistant United States Attorneys. So, there was nothing magical or substantive about the interim U.S. Attorney signing the Comey and James indictments. At best, they represented ministerial choices, and paradigmatic ones to boot.

The Comey and James cases raise important issues about the accountability of public officials. A judicial vetting was surely called for – if only to avoid undermining public confidence in those who make decisions affecting our lives.

Hopefully, the appellate process will get this all sorted out.