In a significant legal development, former FBI director James Comey and New York attorney general Letitia James are mounting a challenge against criminal charges brought during the Trump administration, arguing the prosecutor who obtained their indictments was unlawfully appointed.
Court Hearing to Examine Prosecutor Appointment
The hearing scheduled for Thursday at the federal courthouse in Alexandria, Virginia will mark the first judicial consideration of multiple attempts by James and Comey to dismiss their indictments before trial. Presiding over the case will be Judge Cameron Currie, a South Carolina-based federal judge appointed by former Democratic president Bill Clinton.
At the heart of the legal arguments is whether Lindsey Halligan, Donald Trump's former personal attorney, was illegally installed as interim US attorney for the eastern district of Virginia. If Halligan's appointment is deemed unlawful, the charges against both Comey and James could be invalidated since she was the sole federal prosecutor to present evidence to the grand juries in both matters.
Background of the Controversial Charges
Comey has pleaded not guilty to charges of making false statements and obstructing Congress, while James has pleaded not guilty to charges of bank fraud and lying to a financial institution. Both were charged by Halligan's office shortly after Trump publicly called on US attorney general Pam Bondi to prosecute them.
The sequence of events reveals a concerning timeline: Bondi appointed Halligan at Trump's request in September, following the forced departure of her predecessor Erik Siebert. Siebert had expressed concerns about insufficient evidence to support criminal charges against both Comey and James, who are prominent Trump critics that each oversaw investigations into the former president.
Legal Arguments and Precedents
Attorneys for Comey and James will contend that Halligan's appointment violates federal law that limits interim US attorney appointments to a single 120-day stint. They argue that repeated interim appointments would effectively bypass the Senate confirmation process, allowing a prosecutor to serve indefinitely.
The legal landscape appears favourable to their position. Three federal judges in separate cases have already ruled against the justice department on similar issues, finding that Bondi unlawfully appointed US attorneys in New Jersey, Nevada and Los Angeles. Additionally, a 1986 justice department memo written by Samuel Alito, now a conservative Supreme Court justice, interprets the law in the same manner as Comey and James.
Further complicating matters, two watchdog groups recently revealed that Halligan's use of the encrypted messaging application Signal, with messages set to auto-delete after eight hours, was potentially illegal. Halligan used the platform to communicate with Lawfare journalist Anna Bower about the criminal case against Comey and James.
The justice department plans to argue that Halligan's appointment was lawful, stating that nothing in the law "explicitly or implicitly precludes the Attorney General from making additional appointments." In an unusual move, Bondi belatedly gave Halligan a second title of "special attorney" in late October, authorising her to supervise both prosecutions.
Legal experts suggest the justice department's unconventional manoeuvres to install Halligan could ultimately derail the cases against both prominent figures. No decision is expected immediately following Thursday's arguments.
