Why Come & James Cases Should Be Dismissed With Prejudice

by Mark M. Bello

Two bogus federal prosecutions — against former FBI Director James Comey and New York Attorney General Letitia James — were dismissed last week. Unfortunately, they were not dismissed on the merits of each case, but because the prosecutor who brought the indictments wasn’t legally appointed, which is typical misconduct in the Trump/Bondi Justice Department.

Both dismissals were entered without prejudice. That phrase sounds somewhat ominous, but this type of dismissal is relatively routine in legal circles. Still, readers should understand precisely what it means — and why the real question now is whether either case should ever see the light of day again.

What “Without Prejudice” Actually Means

A dismissal without prejudice means that the ruling does not necessarily end the case. The government, if it wishes, may refile the charges, correcting the error that led to the dismissal. In these cases, for instance, if a legally appointed prosecutor decided to refile the charges, the case might proceed. The cases were not judged on their merits, and neither guilt nor innocence was determined.

However, just because the government can refile these cases does not mean it should. Serious substantive problems make second prosecutions doubtful, unwise, and, in some respects, dangerous.

CASE 1: James Comey — Why the Merits Don’t Support Refiling

The Basics

The Justice Department charged Comey with:

• Making false statements
• Obstructing a congressional proceeding

The indictment came in just before the five-year statute of limitations ran out. It also lacks substance.

1. Statute of Limitations — The Clock Ran Out

The government rushed the original indictment because the deadline was expiring. Comey’s lawyers can now argue that the indictment is void and the clock has expired. Even the judge signaled that the limitations probably bars any new filing, enough to end the case permanently.

2. Serious Investigative Misconduct

Reports from inside the case show:

• Grand jury irregularities
• The grand jury may not have seen the final version of the indictment
• A magistrate judge described “profound investigative missteps.”

If this prosecution were a car, the wheels, engine, and frame would all require warranty work.

3. Clear Appearance of Selective/Vindictive Prosecution

Donald Trump spent years demanding Comey’s prosecution. The public record contains:

• Presidential threats
• Explicit public pressure
• Retaliatory rhetoric tied to Comey’s role in the Russia investigation

When a prosecution is so intertwined with political pressure, courts are required to scrutinize it. The evidence points in a clear direction: the case is premised on political retaliation rather than on neutral law enforcement or evidence gathering.

4. Weak Underlying Case

Obstruction of Congress is not an easy charge to prove. Nor is the kind of false-statement allegation asserted here. The timeline, the facts, and the DOJ’s own hesitation indicate the case was weak long before it was improperly filed. Between the statute-of-limitations bar and the questionable evidence, the Comey case is already a corpse. The appointment issue was just the beginning of the autopsy.

CASE 2: Letitia James — The Case for Merits-Based Dismissal

The DOJ indicted Letitia James for:

• Bank fraud
• False statements to a financial institution

The allegations relate to a 2020 property purchase in Virginia. Again, a faulty prosecutorial appointment invalidated the filing — but this case, too, should not be pursued.

1. Weak Evidence (Career Prosecutors Already Said No)

Multiple DOJ career prosecutors reportedly declined to bring charges because the evidence did not meet federal standards. If the pros who prosecute fraud regularly said “no,” that tells you everything about the strength of this case.

2. Political Targeting Concerns

Few public figures have been more aggressive in holding Trump accountable than Letitia James. She brought — and won — a massive civil fraud case against him. Then she herself got indicted by a prosecutor Trump had openly praised and briefly retained as his personal lawyer. That sequence is not subtle. It speaks for itself. The DOJ prosecuted in retaliation for James’ pursuit of the civil fraud case against Trump.

3. Same Appointment Defect, But the Context Amplifies It

When you combine:

• An unlawfully appointed prosecutor,
• A political target,
• A case career attorneys refused to touch,

you get weaponized federal power rather than a legitimate prosecution. A refiled case under a legally valid prosecutor would still suffer from all the same constitutional concerns.

Refile Would Be Wrong

If the DOJ is allowed to refile politically tainted cases after botching prosecutor appointments, we would be normalizing:

• Endless do-overs
• Politicized prosecutions
• Government harassment by process

That’s not applying the rule of law— that’s abuse of power at the highest levels of our government. Comey has had his reputation dragged through the mud for years. James has endured a prosecution that even DOJ veterans wouldn’t sign their names to. Neither case warrants another round of chaos. The justice system is not supposed to be a carnival game where prosecutors keep throwing balls at the same target until they finally connect.

The Correct Outcome?

Both cases were dismissed on a technicality — but both deserve to be dismissed with prejudice, or on their merits.

James Comey
The statute of limitations has expired. The evidence is weak. The political motivation is blatant. The case should be permanently and irrevocably dismissed (with prejudice).

Letitia James
The evidence was thin from the beginning; the prosecution reeks of selective targeting, and the improper appointment only highlights gross prosecutorial overreach. Given the lack of evidence in the case, it too should be dismissed with prejudice.

A justice system that allows prosecutors to resurrect these prosecutions isn’t a justice system at all — it’s a political abuse of power.

It’s time to close both cases for good.

Mark M. Bello is an attorney and author of 9 Zachary Blake Legal Thrillers and other legal themed novels and children’s books. For more information, please visit https://www.markmbello.com

Bob Gatty Author, Podcaster, Blogger

For many years, Bob Gatty worked as a writer, editor, and communications consultant, based on the Washington, DC area with a focus on government and politics. He began at The Pittsburgh Courier, an African American weekly, covering crime and the courts. His salary was $55 per week before moving on to two local Pennsylvania dailies. At age 24, he began reporting for United Press International covering state politics in Pennsylvania and then New Jersey, where he was UPI’s state capitol bureau in Trenton.

Tempted by the allure of Washington, DC and big-time politics, at age 29 Bob became press secretary and chief of staff for two Congressmen – first Republican Edwin B. Forsythe, and then Democrat James J. Florio, who later became governor of New Jersey and until his recent death was a frequent podcast guest and co-host of Bob’s NFN Radio News podcast (now called Lean to the Left).

After seven years on Capitol Hill, Bob opened a communications business in Washington, first providing political media consulting to candidates and then freelance Washington coverage for business and trade magazines, plus creative communications services for trade and professional associations, including social media. This work involved articles and analyses of key governmental developments affecting businesses, such as the food and Health industries, retailing, and the environment.

His work as a communications consultant to trade and professional associations included launching and editing association publications, providing website content and social media assistance, and covering conferences and conventions.

Bob retired from G-Net Strategic Communications in 2016 and moved to Myrtle Beach, SC, where he launched his blog site, first called Not Fake News, now known as Lean to the Left.

Hijacked Nation
In August, 2020, Bob and co-author Chris Waldron, one of Lean to the Left's most loyal and prolific contributor, published "Hijacked Nation-Donald Trump's Attack on America's Greatness," a two-volume compilation of blogs regarding Trump's presidency and the consequences for our nation. A followup volume was published by Luna Global Media in September 2024. It is available at https://amzn.to/4ePrTF7 .

In all three volumes, blogs from Not Fake News and Lean to the Left create a virtual play-by-play of key actions of the Trump administration and Congress. For more information, please visit https://leantotheleft.net/books/, and visit Bob's Author's Page on Amazon, https://www.amazon.com/stores/Bob-Gatty/author/B08C7HWXZ5?ref=ap_rdr&isDramIntegrated=true&shoppingPortalEnabled=true&ccs_id=4e603563-7251-4074-b54d-40800c4ce40a.

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