Things are going badly for Lindsey Halligan in court. The myriad ways the James Comey case can be dismissed pretrial are mounting.
Apparently having seen the writing on the wall after a rough hearing Wednesday, Halligan attempted to make her case in the media against the presiding judge, Biden-appointee Michael Nachmanoff.
“Lindsey Halligan fires back at James Comey judge who claimed she’s a ‘puppet,’” read a New York Post headline Wednesday evening, following the hearing that revealed the Trump-installed prosecutor may have improperly indicted the former FBI director. “Personal attacks — like Judge Nachmanoff referring to me as a ‘puppet’ — don’t change the facts or the law,” Halligan told The Post.
Reading her lament out of context, it might look like a noble prosecutor laudably undeterred by the ranting of a rogue judge hell-bent on gratuitously attacking her personally for the crime of doing her job.
But that’s not at all what happened.
As The Post reported, Nachmanoff wasn’t randomly calling Halligan a puppet. Indeed, he wasn’t calling her anything at all. Rather, as the story notes — and I’ll italicize for emphasis here — “Nachmanoff asked Comey’s defense lawyer if he thought Halligan, the prosecutor who brought the indictment against the former FBI boss, was acting as a ‘puppet’ or ‘stalking horse’ of the commander in chief.”
That is, the judge asked Comey’s lawyer a question. The judge wasn’t claiming anything himself.
Still, a reader unfamiliar with legal proceedings might wonder: Why even ask a question in those terms?
The answer is that it’s directly relevant to whether Comey’s prosecution is unconstitutionally vindictive. As I’ve explained previously, “stalking horse” is a legal term of art used by defendants who argue that their prosecutors are doing the bidding of someone with illegal animus against them. That’s what Comey argues happened here, with Halligan acting as a stalking horse for Trump’s revenge. It’s not a term that Nachmanoff made up. He used “puppet” as a synonym for “stalking horse.” Whether he ultimately decides that she acted as one or not, it’s a legal question, not a personal attack.
That makes it all the more stunning that Halligan suggested that the judge acted unethically in asking that legal question. The Post reported that she cited a judge’s obligations “to be ‘patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity’ … and to ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’” And it makes it all the more delirious that Halligan said her “focus remains on the record and the law, and I will continue to fulfill my responsibilities with professionalism.”
It’s hard to credit Halligan’s claim of being laser-focused when we are reading that claim in a media report — one that came out the same day her latest legal blunders were exposed in court, and the same week in which another judge called out her “fundamental misstatements of the law” to the grand jury. In fairness to Halligan, she had never prosecuted a case before — but that goes to the point that she’s in the wrong job. As it happens, the question of whether she’s legally in the wrong job, i.e., unlawfully installed by the administration, is another topic that yet another judge is weighing. That’s yet another avenue that could lead to the dismissal of the case against Comey (and against New York Attorney General Letitia James, who has raised similar issues). But even if she’s a new prosecutor, she is a lawyer with a professional obligation to know better than to call out a judge for purportedly unethical conduct when the judge has done nothing of the sort. That’s especially so, given that Halligan could face her own ethical inquiry when all is said and done. A bar complaint has already been filed against her that highlights another questionable instance of extrajudicial statements, when she initiated a perplexing line of communication with a journalist. Overall, Halligan’s misleading public comments read as an attempt to make a public case as the court case implodes. Context shows that her public case is also ripe for dismissal. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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