I need to correct a legal error I’ve made a few times (here, here, and here) and repeated on the podcast — something I’m surprised I never knew, since I was a prosecutor for a long time and had my share of brushes with statutes of limitations.

I have argued that, because Jim Comey was indicted at the end of the five-year federal statute of limitations (on false-statement and obstruction charges), he could not be reindicted on the same charges if the present indictment gets thrown out for some reason — say, because a court holds that Lindsey Halligan’s interim U.S. attorney appointment is infirm. In the normal situation, a prosecutor could simply reindict or supersede the existing indictment to fix the problem; but I’ve contended that if the statute of limitations has expired, a new indictment (or a superseding indictment that substantially changed the charges) would be time-barred.

Wrong.

Ever the sage, Ed Whelan kindly calls my attention to Section 3288 of the federal criminal code (Title 18, U.S. Code). In pertinent part, it states:

Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information.

This indicates that if Judge Michael Nachmanoff were to dismiss the indictment based on one of Comey’s soon-to-be-filed pretrial motions, the government could theoretically refile the charges (assuming there is a way to refile them that fixes whatever flaw resulted in the dismissal).

Section 3288 has a couple of exceptions. If the indictment was dismissed because the statute of limitation had expired before the indictment was filed, Section 3288 does not extend the time to indict.

The statute also doesn’t apply if the indictment was dismissed “for some other reason that would bar a new prosecution.” If Comey were to succeed in getting the indictment dismissed on the ground that his prosecution was selective and vindictive, I suppose he could argue that this would bar a new indictment on the same charges; after all, the new indictment wouldn’t be any less selective or vindictive (at least if it were brought by the Trump Justice Department). I won’t hazard a guess on how that would go — too many what-ifs.

I regret the error and thank Ed for setting me straight. I’m going to attach this post to my prior posts that made the erroneous argument that the statute of limitations would be an insuperable hurdle if the indictment were dismissed pretrial.