Appeals Court Questions DOJ Case Against Comey and AG James Over Unlawful Appointment

A federal appeals panel grilled DOJ counsel Tuesday over the appointment of interim U.S. Attorney Lindsey Halligan and whether dismissed indictments against Comey and AG James should be revived.

Federal Judges Press DOJ on Halligan Appointment and Dismissed Indictments

A three-judge panel on the 4th U.S. Circuit Court of Appeals challenged a senior Justice Department attorney Tuesday over whether fraud and false statement indictments against New York Attorney General Letitia James and former FBI Director James Comey should be reinstated, Law & Crime reports.

Henry Whitaker, Counselor to the Attorney General, argued before the panel that Senior U.S. District Judge Cameron Currie had wrongly concluded that former Attorney General Pam Bondi "unlawfully appointed" Lindsey Halligan — Trump's former personal attorney — as interim U.S. attorney in the Eastern District of Virginia. Whitaker asked the panel to "respect" grand juries' decisions and reverse the dismissals.

The DOJ's position, laid out in earlier briefs, is that any "error" in Halligan's "title" was "harmless" and should not have resulted in the indictments being thrown out. The government also argued that Bondi's subsequent move to retroactively ratify Halligan's actions before the grand juries should have resolved the matter entirely.

Judge Cannon's Mar-a-Lago ruling looms over proceedings

Attorneys for James and Comey pushed back, arguing that Halligan was effectively a private citizen when she was the sole prosecutor to sign the indictments and present evidence to the grand jury. That framing drew an early comparison to U.S. District Judge Aileen Cannon's ruling in the Mar-a-Lago classified documents case against Trump, in which Cannon dismissed charges against the president on Appointments Clause grounds.

"Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision," Cannon wrote at the time, tossing the case as a remedy.

Senior U.S. Circuit Judge Henry F. Floyd, a Barack Obama appointee, posed the parallel directly to Whitaker during oral arguments.

"How would you then distinguish United States v. Trump when Judge Cannon found that Mr. Smith, whatever his name was, wasn't lawfully appointed? What happens in this case? How would you distinguish it if Ms. Halligan's not lawfully appointed?" Floyd asked.

Whitaker answered that Halligan's situation involves the "interim appointment statute" and its 120-day service limit, a different legal framework from the special counsel appointment at issue in the Smith case. He added that the government could have invoked separate appointment authorities — specifically 28 U.S.C. 542 and 543 — that it did not use when defending Smith's appointment.

Chief judge questions ratification argument

Chief U.S. Circuit Judge Albert Diaz, also an Obama appointee, was not persuaded. He described the DOJ's approach of cycling personnel through various titles as something that "cut[s] off both the court — the district court — and the Senate's advice and consent power" under 28 U.S.C. 546.

Diaz then focused his questioning on the government's ratification theory — specifically, whether Bondi's retroactive designation of Halligan as a special attorney could cure the original defect.

"Isn't the tenor of the cases, including our cases, that one can ratify acts, but not actors?" Diaz asked. "You don't ratify actors; you can ratify acts. And if the initial appointment of Ms. Halligan was defective from the jump, then I don't know how that solves your problem with respect to the statute of limitations" issue in Comey's case.

Whitaker maintained that the government ratified Halligan's specific acts — her presentation before the grand jury and her signature on the indictments — rather than her appointment itself. Judge Currie, he argued, had been wrong to conclude that an unauthorized appointment meant those acts could not be ratified.

Trump appointee raises concerns over DOJ appointment practices

U.S. Circuit Judge Julius "Jay" N. Richardson, the lone Trump appointee on the panel, also challenged the defense mounted on behalf of the administration. When Ephraim McDowell argued for Comey and Abbe Lowell did the same for James, Richardson pushed back against the suggestion that the administration could continue bypassing the formal nomination process and appointing loyalists, while simultaneously attacking district courts that are statutorily empowered to fill U.S. attorney vacancies.

Richardson noted that successive appointments have occurred throughout history and questioned the argument that reading the statute as written would somehow render portions of federal law meaningless.

The DOJ has already failed in a separate bid to preserve grand jury subpoenas of James' office on appeal. A distinct prosecution of Comey — tied to his possession of seashells inscribed with the number "8647," a reference widely interpreted as a coded threat against Trump — may also face extended delays regardless of Tuesday's outcome.

No ruling was issued from the bench. The panel's decision is pending.

Source: Law & Crime