ALEXANDRIA, Va. (AP) — Lawyers for former FBI Director James Comey and New York Attorney General Letitia James asked a judge Thursday to dismiss the cases against them, saying the prosecutor who secured the indictments was illegally installed in the role.
U.S. District Judge Cameron McGowan Currie said she expects to decide by Thanksgiving on challenges to Lindsey Halligan’s appointment as interim U.S. attorney for the Eastern District of Virginia. That decision could help determine the fate of the politically charged cases, which were both shepherded by the hastily installed Halligan and together have amplified concerns that the Justice Department is being used as a weapon to target President Donald Trump's perceived adversaries.
Currie also disclosed in court that a record of grand jury proceedings in the Comey case that she reviewed was missing a portion, which she said raised questions about whether Attorney General Pam Bondi could have properly ratified the indictment as the Justice Department says she did.
Halligan was installed in the job at Trump's urging by Bondi in September, just days before Comey was indicted, in what defense lawyers say was an end-run around the constitutional and statutory rules governing the appointment of U.S. attorneys. They say the maneuver was designed to ensure indictments against the president's political opponents after the prosecutor who had been overseeing the two investigations, but had not brought charges, was effectively forced out.
“Ms. Halligan was the sole prosecutor in the grand jury room, and when the sole prosecutor lacks the authority,” said Ephraim McDowell, one of Comey's defense lawyers, “that's not going to be a harmless error.”
U.S. attorneys, top federal prosecutors who oversee regional Justice Department outposts across the country, are typically nominated by the president and then confirmed by the Senate. Attorneys general do have the authority to name an interim U.S. attorney who can serve for 120 days, but lawyers for Comey and James argued that once that period expires, the law gives federal judges the exclusive say of who gets to fill the vacancy.
The interim US attorney resigned under pressure
After then-interim U.S. attorney Erik Siebert resigned in September while facing Trump administration pressure to bring charges against Comey and James, Bondi installed Halligan, a White House aide with no prior prosecutorial experience. The appointment followed a Trump post on Truth Social in which he complained to Bondi about the lack of prosecutorial action against his political enemies and said, “JUSTICE MUST BE SERVED, NOW!!!”
Siebert had been appointed by Bondi in January to serve as interim U.S. attorney. Trump in May announced his intention to nominate him, and judges in the Eastern District unanimously agreed after his 120-day period expired that he should be retained in the role.
But after the Trump administration effectively pushed him out in September, the Justice Department again opted to make an interim appointment in place of the courts, something defense lawyers say it was not empowered under the law to do.
“If the government were to prevail here,” McDowell said, then it “would never need to go through Senate confirmation again for U.S. attorneys.” He said any dismissal of the indictment must be permanent, with no opportunity to bring the case again, to avoid rewarding the government for a violation.
The Justice Department defends Halligan's appointment
The Justice Department maintains that the law does not explicitly prohibit successive appointments of interim U.S. attorneys by the attorney general. Henry Whitaker, a lawyer for the department, argued that the indictment was properly returned by a grand jury and should not be dismissed over what he described as at most a paperwork or clerical error.
“The grand jury made a decision based on the facts and the law, and they followed their oath,” Whitaker said.
He also said that even if there were questions about Halligan's appointment, they were resolved by the fact that Bondi had personally ratified the indictment and reviewed the grand jury proceedings. But Currie, the judge, questioned whether that was possible given that a section of the grand jury proceedings that were produced to her was, for unexplained reasons, missing a section.
Comey has pleaded not guilty to charges of making a false statement and obstructing Congress, and James, a Democrat, has pleaded not guilty to mortgage fraud allegations. The challenges to Halligan’s appointment are part of a multiprong effort to get the prosecutions tossed before trial. Their lawyers have separately argued that the prosecutions are improperly vindictive and motivated by the president’s personal animus toward their clients and should therefore be dismissed.
Trump's history with Comey and James
Comey, as FBI director in the early months of Trump’s first term, infuriated the president through his oversight of an investigation into potential ties between Russia and Trump’s 2016 campaign. Trump fired Comey in May 2017. The two have been open adversaries since, with Comey labeling Trump “unethical” and comparing him to a Mafia boss and Trump branding Comey an “untruthful slime ball” and calling for him to be punished because of the Russia investigation.
James has been a frequent target of Trump’s ire, especially since she won a staggering judgment against him and the Trump Organization in a lawsuit alleging he defrauded banks by overstating the value of his real estate holdings on financial statements. An appeals court overturned the fine, which had ballooned to more than $500 million with interest, but upheld a lower court’s finding that Trump had committed fraud.