High-stakes hearing as Comey and James seek to disqualify prosecutor
A federal judge appeared skeptical Thursday that Lindsey Halligan had been lawfully appointed as the top federal prosecutor in Eastern Virginia but seemed less certain about whether disqualifying her should end the prosecutions of former FBI Director James B. Comey and New York Attorney General Letitia James.
U.S. District Judge Cameron McGowan Currie did not issue an immediate ruling on requests from Comey and James to have their cases dismissed. After a hearing in federal court in Alexandria, Currie said she intends to issue a decision within the next two weeks.
Her ruling could upend not only the controversial prosecutions of two of President Donald Trump’s chief political foes but also throw into question his administration’s broader efforts to install loyalists in key prosecutorial positions across the country.
Lawyers for Comey and James have asked the court to disqualify Halligan, whom President Donald Trump installed in September as interim U.S. attorney for the Eastern District of Virginia. Her predecessor, Erik S. Siebert, was forced out after his decision not to move forward with cases against Comey and James.
Defense lawyers argue Halligan’s appointment violated federal laws governing how long the Justice Department can appoint temporary candidates to head U.S. attorney’s offices while bypassing the Senate confirmation process.
“The only thing that matters was did Ms. Halligan have the proper authority when she stood up before the grand jury” to secure the indictments against Comey and James, Ephraim McDowell, an attorney for Comey argued Thursday. “She did not.”
Justice Department attorneys pushed back, dismissing any missteps the administration may have made as “at best a paperwork error.” They maintained Halligan has been granted full authority to prosecute Comey and James and insisted there are no grounds to justify dismissing the charges.
Despite having no previous prosecutorial experience, Halligan secured an indictment against Comey within days of assuming her post on charges he lied to Congress. She followed that up weeks later with the mortgage fraud case against James tied to her purchase of a Norfolk home.
In both cases, Halligan pursued the charges over objections from career prosecutors in her office who had concluded there was insufficient evidence to support them. She presented the cases to the grand jury herself.
Comey and James have denied any wrongdoing and are challenging their indictments on multiple fronts. In addition to their efforts to disqualify Halligan, they’ve argued the cases against them are motivated solely by Trump’s desire for revenge.
The challenge to Halligan’s legitimacy bears similarities to recent efforts to disqualify Trump-appointed prosecutors in other parts of the country. In recent weeks, federal judges have ruled that the president’s picks to lead U.S. attorney’s offices in New Jersey, Nevada and Los Angeles have been serving unlawfully in their roles, although those cases turned on a different law than the one at issue in Halligan’s appointment.
Typically, U.S. attorneys are nominated by the president and confirmed or rejected in a Senate vote. But a federal statute governing U.S. attorney vacancies empowers the attorney general to make “interim” appointments for a period of 120 days. After that point, if there is still no Senate-confirmed nominee, the judges in each federal court district may appoint their own candidate.
Lawyers for Comey and James argue that Halligan’s appointment was unlawful because the Trump administration had already used the interim appointment law to install Siebert. He had been named to the position in January, served a full 120-day term and was later reappointed to his position by judges before Trump forced him out of the post.
The law does not allow the Justice Department to make successive 120-day appointments, the defense lawyers maintain, and therefore it should have been left to the judges of the Eastern District of Virginia to name Siebert’s replacement.
The Justice Department has advanced its own interpretation, insisting the law grants the attorney general the authority to name as many interim appointees as necessary until the Senate confirms the president’s nominee to fill the position.
“There is nothing in the language of the statute that says the attorney general is limited to only one appointment,” Henry C. Whitaker, a counselor to Attorney General Pam Bondi, told the judge Thursday. “The plain language of the statute supports that the attorney general is limited to only one appointment.”
A federal judge rejected that reading of the law in an August ruling on a challenge to the appointment of Alina Habba, Trump’s interim U.S. attorney in New Jersey. U.S. District Judge Matthew Brann noted in his ruling that the Justice Department’s position would allow the president to appoint temporary picks indefinitely “without ever seeking the Senate’s advice or consent” for a permanent appointee to the position.
Notably, though, Brann was not persuaded that his decision to disqualify Habba should mean that any indictments secured under her supervision should be dismissed—as Comey and James have asked for in their case.
None of the judges who have ruled on similar challenges to Trump’s appointees have concluded that the disqualification of an interim U.S. attorney should result in cases being thrown out. And Currie, throughout Thursday’s hearing, asked several questions of lawyers for both sides on whether invalidating Halligan’s appointment would necessarily doom the cases against Comey and James.
Their lawyers argued that their situation is different from defendants in other cases in which the issue of invalid appointments has come up. In those instances, career prosecutors had signed off on and were managing the prosecutions. Halligan, by contrast, was the only prosecutor to sign the Comey and James indictments.
“Mr. Comey was charged only because Ms. Halligan was unlawfully appointed and then personally secured and signed the indictment acting alone,” Comey’s attorneys Jessica N. Carmichael and Patrick J Fitzgerald said in recent filings.
Currie, an appointee of President Bill Clinton who is normally based in South Carolina, was specially assigned to hear the challenges to Halligan’s legitimacy and has already expressed some interest in what specific role Halligan played before the grand juries that indicted Comey and James.
See also:
James Comey, the former prosecutor, high-ranking official and author, is now a federal defendant
Judge scolds Comey prosecutors for ‘indict first and investigate second’ approach
Letitia James, DOJ prosecutor in sealed battle over subpoena
Letitia James pleads not guilty in mortgage case Trump pushed
Justice Department indicts NY attorney general
Prosecutors push toward charging other Trump foes
Trump’s new demands on Justice Department raise alarm among prosecutors
Justice Department subpoenas Letitia James about Trump fraud probe
Justice Department is investigating NY attorney general who has targeted Trump
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