Halligan In The Hot Seat As Comey, James Move To Disqualify Her As Interim Us Attorney

President Donald Trump’s crusade to prosecute his political rivals could unravel as quickly as it began.

A federal judge is weighing a claim Thursday that Trump’s handpicked prosecutor — who hurriedly brought criminal cases against former FBI Director James Comey and New York Attorney General Letitia James — was illegitimately appointed and ineligible to wield the power of the Justice Department.

Attorney General Pam Bondi appointed Lindsey Halligan, Trump’s former personal lawyer, as interim U.S. attorney for the Eastern District of Virginia in September at Trump’s urging. Halligan succeeded Erik Siebert, who resigned under pressure after he resisted bringing the politically explosive charges.

Comey and James say the sequence of events proves the cases against them are purely meant tosatisfy Trump’s thirst for vengeance against his longtime adversaries. But the key issue before the court Thursday is their claim Halligan was never eligible to take on the prosecutorial role because of legal limits on who can serve in it.

Though Halligan isn’t the first Trump-era federal prosecutor to face challenges — three have already been disqualified by federal courts — a similar ruling in Halligan’s case would be by far the most consequential. That’s because Halligan was the only Justice Department prosecutor to sign the Comey and James indictments, and the only one to present evidence to the grand juries that approved them.

The decision falls to U.S. District Judge Cameron Currie, a South Carolina-based Clinton appointee who was tapped to handle the challenges to Halligan’s appointment. Though it’s unlikely Currie will rule immediately, her timeline is short because Comey and James are both slated to go to trial in January.

While Currie is unlikely to divulge her intentions, she could offer clues to her thinking during Thursday’s proceedings. The judgr has received and privately reviewed the transcript of Halligan’s appearance before the grand juries that indicted Comey and James, giving her unusual insight into how the cases came together and how Halligan herself characterized her role.

Comey has been seeking access to the grand jury transcripts to determine whether Halligan, who has never prosecuted a case before, gave adequate instructions to the grand jury.

Currie may also provide insight into her view about whether the indictments must be scrapped should Halligan be disqualified — since no other DOJ prosecutors signed onto them at the time they were returned.

At the core of the dispute over the legality of Halligan’s appointment is a law that allows for temporary replacement of a U.S. attorney when a previous one departs. The statute permits the attorney general to install a replacement for 120 days and allows the local federal court to appoint that person or someone else to serve as the interim U.S. attorney after the 120 days expires.

Shortly after Trump’s inauguration in January, acting Attorney General James McHenry named Siebert as interim U.S. attorney. When that appointment expired in May, the judges of the Eastern District of Virginia named Siebert to continue in that capacity. He resigned on Sept. 19, amid the row over Comey’s potential indictment, though Trump later claimed he fired Siebert. (The Justice Department’s brief is evasive on that point, saying simply that Siebert “vacated” his office.)

According to DOJ, Siebert’s exit — whether forced or voluntary — cleared the way for Bondi to name Halligan to the post on a temporary basis, restarting the 120-day clock.

Lawyers for Comey and James say that, following a vacancy, the law gives the attorney general one appointment of up to 120 days and subsequently the post can only be filled by other means, such as a court-directed appointment.

“If the Attorney General could make back-to-back sequential appointments of interim U.S. Attorneys, the 120-day period would be rendered meaningless, and the Attorney General could indefinitely evade the alternate procedures that Congress mandated,” Comey’s lawyers wrote.

Attorneys for Comey and James cite a prominent legal authority in support of their position: Supreme Court Justice Samuel Alito. In 1986, while a senior Justice Department lawyer, Alito wrote a memo rejecting the idea that the AG can use the 120-day provision for back-to-back appointments.

“It would appear that Congress intended to confer on the Attorney General only the power to make one interim appointment,” Alito wrote. Several lawmakers involved in re-enacting the provision in 2007 have also filed a friend-of-the-court brief with Currie backing that interpretation.

Citing the unusual circumstances around the indictments of Comey and James, their lawyers are asking Currie to dismiss the indictments with prejudice, meaning the charges could not be re-filed.

In a bid to shore up the criminal cases, Bondi signed an order last month that attempted to retroactively ratify Halligan’s actions, saying Halligan was carrying out responsibilities delegated by the attorney general herself.

But Comey and James’ lawyers say that step came too late. “Attorney General Bondi lacked the power [to] announce an appointment of Ms. Halligan that bent space and time,” James’ attorneys wrote.

If Currie tosses the cases out without prejudice to them being refiled, the Justice Department could face trouble in the Comey case due to a five-year statute of limitations that ran out in September. But prosecutors have cited a federal law that they say gives them at least six months to resurrect the case against Comey if the judge dismisses the charges.