Lawyers for former FBI Director James Comey and New York Attorney General Letitia James asked a judge today to dismiss the criminal cases against them, brought by a Trump-appointed federal prosecutor they say was not put in her position lawfully.
Just days after taking office, interim U.S. Attorney Lindsey Halligan brought criminal charges against Comey and James on charges of making false statements to Congress and for mortgage fraud, respectively.
Both Comey and James have pleaded not guilty.
Halligan, a former insurance lawyer with no prosecutorial experience, was appointed by Attorney General Pam Bondi to lead the Eastern District of Virginia after Erik Siebert, the top career prosecutor who had already been serving on an interim basis, resigned after refusing to secure indictments against Comey and James.
Lawyers for Comey and James argued today that Siebert had already served a full 120-day interim term before his resignation in September, which, according to federal law, would not allow the Department of Justice to make a second interim appointment. Defense teams called it a “serious constitutional violation” in addition to a “statutory violation.”
Should Comey and James prevail, Halligan’s appointment — and any of her prosecutorial endeavors since she took the office — would be deemed unlawful.
Attorneys for the government called the issue “at best a paperwork error,” also arguing that the attorney general has “broad authority” to appoint interim U.S. attorneys to separate 120-day terms without Senate confirmation.
Judge Cameron Currie is expected to rule before Thanksgiving.
Bondi recently designated Halligan a “special attorney” to the Justice Department with authority to oversee the two cases, based on her “review” of the indictments. That designation could allow Halligan to remain in charge of the Eastern District of Virginia functionally, if not officially.
But whether Bondi’s order — which was filed after both indictments — can preserve the cases remains to be seen.
At one point, Currie appeared skeptical of the government’s arguments, questioning whether Bondi had, indeed, properly reviewed Halligan’s indictments upon signing off on them. The judge noted that grand jury transcripts from the proceedings were missing several minutes, which would be significant if Halligan was alone in the courtroom without a court reporter to produce a proper transcript for review. Currie also questioned how Bondi determined Halligan’s designation as “special attorney.” Ephriam McDowell, an attorney for Comey, argued that Halligan lacks “legal authority” and any matter brought by her was “always going to be prejudiced.” McDowell said sending Halligan into a grand jury room would be akin to sending Elon Musk or Steve Bannon to secure an indictment and have the attorney general “bless it and ratify it.” Halligan, who was also a personal attorney to President Donald Trump, is not the first U.S attorney appointed during his administration whose eligibility has been questioned. Alina Habba, a former Trump aide, was found unlawfully appointed as acting U.S. attorney in New Jersey by a federal judge, though that ruling is pending appeal. Judges have also ruled that the acting U.S. attorneys for the Central District of California and Nevada were unlawfully appointed. One continues to serve in a similar role while the other remains in her job pending appeal. Critics of the Trump administration have called the Comey and James indictments part of a broader campaign of retribution against the president’s foes.
Lisa Rubin is an MS NOW legal correspondent and a former litigator. Previously, she was the off-air legal analyst for “The Rachel Maddow Show” and “Alex Wagner Tonight.”
Fallon Gallagher is a legal affairs reporter for MS NOW. Recommended
