The fate of James Comey’s indictment could eventually land at the Supreme Court. Perhaps mindful of that, the former FBI director’s lawyers cite the words and logic of the high court’s GOP appointees in one of his motions to dismiss his criminal case.
Arguing that Trump-installed prosecutor Lindsey Halligan was unlawfully appointed as interim U.S. attorney for the Eastern District of Virginia, among the authorities Comey relies on are Justices Samuel Alito and Clarence Thomas. His motion to dismiss on that ground is one of two that his defense team filed Monday, the other arguing that his prosecution is unconstitutionally vindictive and selective.
In the unlawful appointment motion, Comey’s lawyers write that Halligan’s installation violated federal law on filling vacancies (28 U.S.C. § 546). They noted that the previous head of the Virginia office, Erik Siebert, was appointed on an interim basis under that law, which allows for a 120-day stint without Senate approval. That temporary appointment expired on May 21, but the district’s federal judges appointed Siebert to stay on under a different section of the law that gives them that authority.
Siebert resigned last month after resisting bringing unfounded cases against the president’s political opponents. But instead of awaiting a replacement from the district judges as provided by the law, Attorney General Pam Bondi installed Halligan under that interim authority (after Trump publicly demanded Comey’s prosecution and the statute of limitations was about to run out).
That was illegal, Comey’s team claims, because the temporary authority under which Siebert was appointed had long expired. They noted that permitting Halligan’s installation “would allow the government to string together sequential 120-day appointments under Section 546 and thereby indefinitely or perpetually evade Congress’s default requirement of Senate advice and consent.”
Alito enters the picture through a memorandum on the law at issue that he wrote in 1986 for the Justice Department’s influential Office of Legal Counsel, when he was deputy assistant attorney general. Comey’s lawyers write that Alito interpreted the law “in precisely the same manner as Mr. Comey here.” They emphasized Alito’s memo where he wrote that, when the 120-day period expires and the president hasn’t made an appointment or one hasn’t been confirmed, “it does not follow that the Attorney General may make another appointment pursuant to 28 U.S.C. 546(a) after the expiration of the 120-day period.”
Writing that Halligan’s appointment violates not only that federal law but the Constitution’s appointments clause, Comey’s team also cites Thomas’ concurring opinion in the Supreme Court’s immunity ruling for Donald Trump in the federal election interference case. There, Thomas wrote that “there are serious questions” about whether special counsel Jack Smith’s role in the case was lawful.
Comey further cited U.S. District Judge Aileen Cannon’s subsequent ruling dismissing Trump’s classified documents case on the grounds that Smith was unlawfully appointed, in which the Trump-appointed judge cited Thomas’ concurrence from the immunity case.
Even if the courts agree with Comey that Halligan was unlawfully appointed, there’s a separate question of what should happen next. Unsurprisingly, Comey’s lawyers say the indictment must be dismissed, writing that Halligan “alone secured and signed” the indictment and that “any other remedy would not sufficiently address and deter the Executive Branch’s willfully unlawful conduct in this case.” In support of dismissal, Comey’s team cites Thomas again, quoting his concurrence from a 2021 case in which he wrote that an improperly appointed officer can’t “lawfully exercise the statutory power of his office at all in light of the rule that an officer must be properly appointed before he can legally act as an officer.” On that note, Comey also cites Trump appointee Neil Gorsuch’s concurrence from that 2021 case, in which he wrote that any attempts to wield official power outside of the Constitution “are void.” The Justice Department will have an opportunity to respond in writing to this and Comey’s other motions before they are resolved, at least initially, in the district court. We may learn later in the litigation how the justices themselves see their own words as fitting in here. 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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