Lindsey Halligan was named interim US attorney for the Eastern District of Virginia in September. Photo / Jabin Botsford, The Washington Post
A federal judge has dismissed charges against former FBI director James B. Comey and New York Attorney-General Letitia James, delivering a blow to President Donald Trump’s efforts to engineer prosecutions of two of his prominent foes.
US District Judge Cameron McGowan Currie ruled that Lindsey Halligan, the prosecutor overseeing both cases, had been unlawfully appointed to her position and, therefore, indictments she secured against Comey and James must be thrown out.
Currie denied the defendants’ request to bar the Justice Department from seeking to indict them again under a lawfully appointed prosecutor. In Comey’s case, however, she suggested their time to do so has run out.
Comey’s lawyers have argued that he cannot be recharged because the statute of limitations in his case expired days after he was indicted in September. Currie appeared to endorse that view, saying Justice Department attempts to address the issue came too late.
“All actions flowing from Ms. Halligan’s defective appointment, including securing and signing Mr. Comey’s indictment, constitute unlawful exercises of executive power and must be set aside,” she said in her written opinion. “There is simply ‘no alternative course to cure the unconstitutional problem.’”
A spokesperson for the Justice Department did not immediately return calls for comment. However, department officials are all but certain to appeal.
Currie, an appointee of President Bill Clinton normally based in South Carolina, was specially assigned to rule on the validity of Halligan’s appointment as interim US attorney for the Eastern District of Virginia. Her decision delivered rebukes to the Justice Department on two fronts.
By declaring Halligan’s appointment invalid, Currie joined several other judges in rejecting legal arguments the Trump administration has used to install loyalists in top prosecutorial positions across the country.
The judge’s decision to go further and dismiss the cases against Comey and James complicates Trump’s efforts to deploy the Justice Department in furtherance of his desire for retribution.
Trump has called for Comey’s prosecution for years, following his decision to fire the then-FBI director in 2017. He has accused James – a Democrat who ran for office, in part, with vows to hold Trump accountable – of wrongdoing after she secured a multimillion-dollar civil fraud judgment against Trump and his real estate empire last year.
Since his return to the White House in January, Trump has repeatedly called on the Justice Department to move swiftly to charge James and Comey with crimes, paying little mind to whether evidence existed to support charges.
When Erik S. Siebert, the Trump-appointed interim US attorney overseeing both investigations, concluded that the evidence did not suffice, Trump forced him out of his job and installed Halligan, an ex-White House aide and one of the President’s former personal lawyers, in his place.
Within days, Halligan, who had no previous prosecutorial experience, took both cases before grand juries and secured indictments.
In addition to the effort to challenge the validity of Halligan’s appointment, Comey and James both have urged judges to end their prosecutions on grounds that they are improperly driven by Trump’s vindictive animosity toward them. Separately, Comey has sought dismissal of his case over what his lawyers have described as irregularities in the grand jury process that resulted in his indictment.
In defending Halligan, the Justice Department advanced an expansive view of its authority to temporarily fill US attorney vacancies with the President’s candidate of choice despite efforts by Congress to rein in the circumstances in which appointees can fill those roles while bypassing Senate approval.
Typically, the Senate must confirm a President’s US attorney picks. But the law empowers the Attorney-General to temporarily fill vacancies by making an interim appointment for a period of 120 days.
If the Senate has still not confirmed the President’s nominee by the end of that time, the law permits the federal judges in a given judicial district to name a temporary replacement.
Justice Department lawyers maintain that the Attorney-General has the authority to make successive interim picks as she did with Halligan’s appointment after Siebert was forced out.
Attorneys for Comey and James disputed that interpretation of the law. They argued that if an administration were allowed to name new interim US attorneys every 120 days, there would be no reason for a President to ever put nominees before the Senate for confirmation.
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