An appeals court is questioning the Justice Department’s attempt to restart prosecutions of two of Donald Trump’s most-hated foes after their indictments were tossed over the unlawful appointment of a MAGA loyalist as a federal prosecutor.
In the U.S. Court of Appeals for the 4th Circuit on Tuesday, the three-judge panel seemed skeptical of the government’s argument that cases can again be brought against James Comey, the former FBI director, and Letitia James, the New York attorney general. The focus shifted instead to the involvement of prosecutor Lindsey Halligan and whether she had been lawfully installed.
Last year, Halligan obtained an indictment against Comey for allegedly lying to Congress about authorizing leaks to the press, and against James for alleged mortgage fraud. But the indictments were thrown out because Trump had illegally appointed Halligan as interim U.S. attorney in the Eastern District of Virginia, U.S. District Judge Cameron McGowan Currie ruled.
Two members of the appeals court panel pressed government lawyer Henry Whitaker about reviving the cases. Judges Albert Diaz and Henry F. Floyd, appointees of former President Barack Obama, questioned the government’s position that the 80-year-old president could legally appoint one acting attorney after another without obtaining Senate confirmation.
“I understand that you’re representing that this administration has no incentive to engage in a cascade or carousel of interim appointees,” Diaz said, Politico reported. “But under your reading of the statute, that is the logical conclusion, that an executive could … just continue with a succession of appointments, thereby essentially cutting off both the court, the district court, and the Senate’s advice and consent power. Isn’t that true?”
Whitaker responded that the government had “no incentive” to do so. But Diaz got him to admit that that could still easily happen.
“You’re saying you have no incentive, but under your reading of the statute, a nefarious, ne’er-do-well executive could do exactly that, right?” he asked.
Whitaker agreed.
Floyd suggested that without the proper protocols, Halligan held no special status when she secured the indictments.
“What’s different with a man on the street?” Floyd asked.
The judges gave no indication of how they might rule, according to Politico. However, Trump appointee Julius Richardson, the third judge, seemed more amenable to Whitaker’s claim that Currie’s ruling was wrong, according to the Washington Post.
Whitaker said, “Two grand juries in this case found probable cause that these defendants committed federal crimes… I would respectfully submit … that the grand juries’ decisions in these cases should be respected.”
Currie determined that Halligan’s appointment was illegal because her predecessor, Erik Siebert, had already been in the acting role for a full four months. Trump, he wrote, couldn’t just replace Siebert with another temporary attorney and then continue to do that every four months. Therefore, the indictments that Halligan obtained had no force of law.
Halligan, 37, had no prosecutorial experience when Trump installed her last September. A former Miss Colorado USA contestant, she had been a White House aide in the months before her appointment and, before that, a personal attorney to Trump.
Halligan made some embarrassing goofs during her short-lived time as a federal prosecutor. When announcing Comey’s indictment, she mixed up “principal” and “principle” in her statement: “The balance of power is a bedrock principal of our democracy.” And in James’ indictment a few weeks later, Halligan stated that James lived in “Brooklyn, NJ,” instead of New York.
Halligan resigned in January amid pressure from judges who questioned why she hadn’t left office following Currie’s ruling. Now leading her former office isFirst Assistant U.S. Attorney Theo Stamos.
Comey, 65, and James, 67, have maintained their innocence.
Earlier this year, federal prosecutors brought a separate case against Comey over a social media post showing seashells spelling out “86 47.” The government contends that it amounted to a death threat, which Comey denies.
“I’m still innocent, I’m still not afraid, and I still believe in the independent federal judiciary, so let’s go,” he wrote on his Substack after that indictment. “But it’s really important that all of us remember this is not who we are as a country. This is not how our Department of Justice is supposed to be. And the good news is, we get closer every day to restoring those values. Keep the faith.”
The Justice Department did not immediately respond to a request for comment.
