Advisory Opinions: “Case Against Comey Dismissed”
Podcast: Advisory Opinions by The Dispatch
Hosts: Sarah Isgur and David French
Date: November 25, 2025
Episode Overview
This episode is a rapid-fire tour of recent high-stakes and nuanced legal developments, including the dismissal of the Comey indictment over prosecutorial appointment issues, updates on the Texas gerrymandering litigation and the Supreme Court’s application of the Purcell principle, two Supreme Court GVRs (Grant, Vacate, Remand)—one involving the Confrontation Clause and another on party presentation at trial, news on the birthright citizenship case’s procedural trajectory, a heated cert denial discussion involving the Feres doctrine, and summaries of two recent Supreme Court grants on ballot deadlines and asylum seekers’ rights at the border. The episode closes with the hosts’ reflections on Thanksgiving gratitude and some lawyerly advice for law students.
1. Breaking News: Dismissal of the Comey Indictment
[02:15–14:31]
Key Facts
- Sarah reports that indictments against James Comey and Letitia James have been dismissed because the prosecutor, Lindsey Halligan, was found to be invalidly appointed as U.S. Attorney for the Eastern District of Virginia.
- Legal background: The 120-day limit for interim U.S. attorney appointments had already expired with the previous appointee, so Halligan was improperly installed.
- The peculiar procedural posture led to the case being assigned to a South Carolina district judge, as all EDVA judges were recused.
Legal Issue
- Does the 120-day limit for AG-appointed U.S. attorneys apply per-person or as a one-time total for any interim appointment prior to a Senate-confirmed successor? The judge adopted a strict textualist position: the time window is collective rather than renewable per appointee.
- The government’s argument (rejected) was that each new interim appointee gets a fresh 120 days.
Sarah Isgur [07:10]:
“Can you really circumvent Senate confirmation that easily with serial 120-day interim appointments? … This is not something that has been extensively litigated.”
Remedy and Next Steps
- The case was dismissed without prejudice (meaning re-indictment is possible).
- Debate over whether the statute of limitations has expired, and whether a six-month extension (18 USC 3288) applies after dismissal following expiration.
- The judge suggested (citing precedent) that an invalid indictment does not toll the statute of limitations, but Sarah notes the cited case actually cut the other way.
Sarah [09:46]:
“So does that statute that I just read you, 3288… Did they basically figure out how to toll the statute of limitations against James Comey and buy themselves six more months?”
David [12:51]:
“I do not think this is the end of the Comey case. … This is a case that just gets more confusing and weird every day.”
- DOJ confusion adds layers: did the grand jury see the right indictment? Possible grand jury misinstruction and misuse of privileged information still loom.
- Appeals are possible but unlikely to succeed; more likely, the government will refile under 3288.
2. Texas Gerrymandering Case Update & The Purcell Principle
[14:31–22:02]
- The Supreme Court’s Justice Alito issued a stay on a lower court decision concerning Texas’s 2025 redistricting maps, indicating the 2025 maps may be treated as the status quo.
- Purcell Principle in action: federal courts should avoid changing election rules too close to an election for the sake of voter clarity and confidence.
- The unique twist: The 2025 Texas law expressly voided the old (2021) maps if the 2025 maps were struck down, complicating what “status quo” means.
- Discussion: Is Purcell an equitable doctrine (requiring “clean hands” by the party invoking it)? Can a legislature time their redistricting to evade meaningful judicial review by hiding behind Purcell?
Sarah [19:56]:
“Can you sort of invoke Purcell and say that federal courts can’t change election rules so close to an election if you’re the one who caused the litigation so close to the election?”
David [20:33]:
“If you… redistrict hard up on this Purcell deadline, do you get the benefit of that doubt?”
3. Supreme Court GVRs: Confrontation Clause & Party Presentation
[22:07–39:40]
A. Confrontation Clause GVR
[22:07–31:12]
- In a child sexual abuse case, Mississippi law required a screen to shield the child witness from the defendant—ruled mandatory.
- SCOTUS per curiam (no noted dissent): you cannot automatically deny in-person confrontation just because of a state law. Case requires a case-specific finding of necessity.
- Importantly, such constitutional errors are subject to harmless error review.
Sarah [25:39]:
“…even a constitutional problem could constitute a harmless error.”
David [29:58]:
“I think the only way to make sense of this and still grant a high privilege to the Constitution is to essentially say… we’ve created a rebuttable presumption of reversible error… rebutted by overwhelming additional evidence.”
B. Party Presentation GVR
[31:12–39:40]
- Fourth Circuit ordered a new trial for a murder conviction based on a theory that was never presented by either party.
- SCOTUS reversed, reaffirming that courts should not decide issues sua sponte (unpresented by either party)—they are arbiters, not advocates.
- Sarah remarks on the Fourth Circuit’s emergent role as “the new Ninth Circuit” for liberal or idiosyncratic decisions.
David [34:57]:
“…it is not uncommon at all for judges to bring up matters that parties have not briefed… but for that, you ought to ask for briefing.”
4. Birthright Citizenship Case Procedural Update
[41:45–46:47]
- SCOTUS relisted (delayed decision on) the challenge to the Trump-era birthright citizenship order.
- Why relist? Signals either more vetting (vehicle problems, sufficient record, etc.), writing a denial statement, or possible grant is imminent.
- Current status: lower courts have blocked enforcement; Supreme Court’s next move is awaited.
Sarah summarizes Amy Howe at SCOTUSBlog [45:29]:
“When a case is relisted, it can signal… one or more Justices want to take a closer look… Or could be summarily reversing…”
5. Feres Doctrine Cert Denial with Notable Dissents
[46:52–54:56]
- The Justices denied certiorari in a case involving the 1950 Feres doctrine, which bars service-related suits against the federal government.
- Justice Sotomayor (joined by Justice Kagan) and Justice Thomas (joined by Justice Gorsuch) wrote separate opinions, all criticizing Feres as atextual and unjust but split on whether stare decisis (precedent) tied their hands.
- The facts were tragic: an off-duty airman was killed by a federal employee in a non-military auto accident, yet Feres (as applied by lower courts) blocked his widow’s claim.
Sotomayor [quoted by David, 48:33]:
“Feres’s atextual expansion of the Federal Tort Claims Act has garnered near universal criticism…”
Thomas [summarized by David, 50:22]:
“Even if Feres is not overturned, how is this ‘incident to military service’?”
6. Upcoming Cert Grants: Election Law & Border Asylum
[55:11–67:47]
A. Ballot Deadline Case (“Watson”)
[55:11–60:31]
- Issue: Can absentee ballots be counted if received after Election Day, if mailed on time?
- Plaintiffs (GOP) argue “Election Day” means all ballots must be received, not just mailed, by that day.
- 16 states permit counting if postmarked by Election Day and received afterward.
Sarah [58:44]:
“…there is something very appealing to me about saying, nope, when we start counting ballots after the polls have closed…that is a set universe of ballots and that’s it…”
David [60:31]:
“…this is a sort of a classic policy question… I’m not sure that the phrase ‘Election Day’ carries an inherent meaning…”
B. Border Metering / Asylum Case
[60:31–67:47]
- Issue: Does the statutory right to seek asylum apply to migrants who are physically outside the U.S. but in direct contact with U.S. border agents who prevent them from entering?
- Statute clearly says “physically present or arrives in the U.S.” Ninth Circuit majority held that the border effectively “moves” with U.S. agents at the boundary.
- Likely to be reversed by the Court; textually, “physically in the U.S.” does not include the Mexico side’s line.
David [63:43]:
“I don’t know how you could write the statute more clearly…”
7. Lightning Round & Pre-Thanksgiving Reflections
[67:47–end]
- Teasers for upcoming episodes and cases, including campaign finance, death penalty/low IQ, state AGs’ weaponization.
- Discussion turns light and personal for Thanksgiving: shout-outs to “Ruth Bader Ginsburg,” the black rooster, and gratitude for the discovery of antibiotics.
- Sarah and David trade law school war stories about Thanksgiving exam anxieties, reinforcing “bad first semester grades don’t define your life.”
Sarah [74:04]:
“…first semester grades do not define you.”
Notable Quotes and Moments
- Sarah (on the government’s argument, 06:20): “The argument is… we can keep doing 120 days. But if that’s the case, then why would you ever need that last part about the district courts appointing someone?”
- David (on the state of the Comey case, 12:51): “I do not think this is the end of the Comey case… But I do not think this is the end of the Comey case.”
- Sarah (on the Confrontation Clause, 29:12): “What is the worth of the confrontation clause? When is confronting your accuser ever not harmless error?”
- David (on fallback votes, 53:20): “If you have a totally atextual… legal doctrine created by a judge, that is something that is absolutely ripe for reversal.”
Timestamps for Key Segments
- 02:15 – Analysis starts: Dismissal of Comey and Letitia James indictments
- 07:10 – Textualism and U.S. Attorney appointment statute
- 12:51 – Procedural confusion and grand jury issues in Comey case
- 14:31 – Texas redistricting, Purcell Principle, and circuit justices
- 22:07 – Supreme Court GVRs: Confrontation Clause
- 31:12 – Party presentation GVR and Fourth Circuit discussion
- 41:45 – Birthright citizenship case relist at Supreme Court
- 46:52 – Feres doctrine cert denial, with Sotomayor and Thomas opinions
- 55:11 – Supreme Court grants cert: absentee ballot deadlines
- 60:31 – Border metering/asylum cert grant
- 67:47 – Upcoming cases and hosts’ Thanksgiving gratitude
Overall Tone:
Highly informed, lively, and collaborative; alternates between technical, philosophical, and irreverent—with lawyerly asides, Supreme Court lore, and practical reflections.
For Listeners Who Missed the Episode:
This episode delivers legal news with clarity, depth, and spirited debate—focusing on breaking federal court developments, the interpretive philosophies that drive them, and their real-world import. It’s a must-listen for anyone tracking how statutory and constitutional doctrine collide with politics, procedure, and the quirks of the American legal system.