Monday’s dismissals of indictments against former FBI Director James Comey and New York Attorney General Letitia James represent a significant setback for President Donald Trump and his Justice Department. The dismissals are the direct result of Trump and Attorney General Pam Bondi’s furious and sloppy attempts to circumvent constitutional checks and balances to rapidly manufacture criminal charges against the president’s adversaries. Due to his administration’s repeated missteps, and the refusal of the courts and career prosecutors to obey their dictates, the president and attorney general have crashed into another roadblock in their efforts to corrupt the rule of law.
The dismissals are the direct result of Trump and Attorney General Pam Bondi’s furious and sloppy attempts to rapidly manufacture criminal charges against the president’s adversaries.
Judge Cameron McGowan Currie ruled on Monday that Lindsey Halligan was unlawfully appointed the interim U.S. attorney for the Eastern District of Virginia. Halligan was apparently placed there, as Trump himself insinuated in a social media post, to prosecute the president’s perceived enemies. Within a week of her appointment, Halligan personally indicted Comey, and she indicted James shortly thereafter.
Because Currie found that Halligan’s appointment violated the Constitution and the law, all actions flowing from her defective appointment, including securing and signing indictments charging Comey and James, constituted unlawful exercises of executive power. On that basis, Currie dismissed both indictments. Bondi has announced the government’s plan to appeal Currie’s ruling.
Halligan’s “interim” appointment disregarded the law and prosecutorial integrity. On Jan. 21, Bondi appointed Erik Siebert interim U.S. attorney for the Eastern District of Virginia; he was subsequently nominated to be the permanent U.S. attorney, subject to Senate confirmation. But in September, resisting pressure from Trump, Siebert refused to indict Comey or James, having reportedly concluded with career prosecutors that there was no sufficient basis for criminal charges. Siebert’s integrity infuriated Trump, who forced him out and then replaced him with Halligan, his former personal attorney. Halligan had no prior prosecutorial experience, but that did not deter her from countermanding the career prosecutors in her new office who sent her a memo explaining why they believed Comey shouldn’t be charged, NBC News reported. Halligan rushed to a grand jury and personally presented an indictment against Comey days before the statute of limitations was to run out on those charges.
Soon thereafter, Comey and James filed motions to dismiss their cases, arguing that Halligan was unlawfully appointed.
The infirmities in Halligan’s appointment were immediately apparent, in part because the Trump administration had previously tried to skirt the law to appoint an unqualified loyalist as an interim U.S. attorney. My colleagues and I at Democracy Defenders Fund had already contributed to securing a ruling that Alina Habba’s interim appointment as U.S. attorney in New Jersey was similarly unlawful. (A member of Democracy Defenders Fund’s co-counsel in that case, Lowell & Associates, also represents James in her criminal case.) Since then, two other interim U.S. attorneys, in addition to Halligan and Habba, have also been disqualified.
The relevant statute allows the attorney general to appoint an interim U.S. attorney for a period lasting 120 days. As Currie ruled on Monday, “If the position remains vacant at the end of the 120-day period, the exclusive authority to make further interim appointments under the statute shifts to the district court, where it remains until the President’s nominee” for the permanent post is confirmed by the Senate.
In the Eastern District of Virginia, that 120-day period expired on May 21. After that date, only the district court in the Eastern District of Virginia could appoint another interim U.S. attorney. Bondi’s appointment of Halligan in September, therefore, was illegitimate — violating the law and the appointments clause of the Constitution. Currie ruled that Halligan, therefore, “has been unlawfully serving” as interim U.S. attorney since then.
Bondi submitted a bizarre letter to the court that purported to retroactively make Halligan inds with the authority to prosecute Comey and James.
On Oct. 31, after Bondi realized her appointment of Halligan could stifle one of Trump’s most fervent endeavors, she submitted a bizarre letter to the court that purported to retroactively make Halligan a “special attorney” with the authority to prosecute Comey and James. The court easily slapped away this lame gambit as well, pointing out that the government “identified no authority allowing the Attorney General to reach back in time and rewrite the terms of a past appointment” and rejected Bondi’s “attempt to retroactively confer Special Attorney status.”
The future of the two cases is up in the air. Because Currie dismissed the indictments “without prejudice,” the government can, in theory, attempt to refile the indictments lawfully. The government is currently appealing two of the rulings regarding the improper appontment of prosecutors, including Habba’s, while the third disqualified U.S. attorney currently serves in a different position. Given the flimsy cases against Comey and James, and the previous refusal of prosecutors in the Eastern District of Virginia to pursue them, it remains unclear who would bring such charges. Any attorney Trump seeks to place in that office, including Halligan, would need Senate approval. Moreover, both Comey and James have already filed a series of compelling motions to dismiss, including for vindictive and selective prosecution. If and when these cases are resumed, those will be next on the docket for the court to consider.
For now, though, these dismissals are important victories for Comey and James. That they were indicted in the first place reflects the poison Trump and Bondi have sought to inject into the Justice Department. But, as has been the case in so many other instances, the administration’s incompetence and the laudable righteousness of career civil servants and officers of the court holding the line have preserved the integrity of our justice system.
Joshua Kolb
Joshua Kolb is counsel and manager of Rapid Legal Response at State Democracy Defenders Action.