If the naming of Lindsey Halligan as Alexandria’s top federal prosecutor did not comply with the law, there could be chaos.
On the Corner last night, I put up a series of posts (one, two, three, and four) dealing with issues that arose out of Wednesday morning’s arraignment of former FBI director James Comey in Alexandria federal court, the Eastern District of Virginia (EDVa). Comey, of course, has been indicted by the Trump Justice Department on false statement and obstruction charges. Among the matters discussed in the posts was the prospect that Comey and his lawyer, Patrick Fitzgerald, could get the charges dismissed pretrial on the grounds of selective prosecution or the inadequacy of the indictment.
As Rich and I discussed in recording the podcast this morning, I’ve learned since those four posts that the defense also intends to move for dismissal based on what it contends is the illegality of Lindsey Halligan’s appointment as interim U.S. attorney.
Last month, when Attorney General Bondi, at the president’s direction, named Halligan to serve as the EDVa’s new interim U.S. attorney, I argued that her appointment was probably illegal under Section 546(c) of Congress’s laws governing U.S. attorneys (Chapter 35 of Title 28, U.S. Code). (See “Trump DOJ Courting Chaos in Effort to Install New Virginia U.S. Attorney.”) At Bench Memos, Ed Whelan has also posted on the likely infirmity of Halligan’s appointment.
Halligan is a former insurance lawyer, personal attorney to Donald Trump, and Trump White House staffer. The president appointed her interim U.S. attorney after he fired Erik Siebert. Upon taking office, Trump had appointed Siebert interim U.S. attorney for the EDVa and even nominated him to be the district’s full-fledged U.S. attorney (pending Senate confirmation); but he fired Siebert — apparently over the pleas of AG Bondi and Deputy AG Todd Blanche that Siebert be retained — because Siebert declined to charge Comey and another Trump political nemesis, New York Attorney General Letitia James.
Halligan was not a criminal law practitioner and had never prosecuted a criminal case before indicting Comey. Trump had upbraided Bondi over the Justice Department’s failure to bring that indictment in what, the Wall Street Journal reports, was meant to be a private Truth Social direct message from Trump to Bondi that was inadvertently posted on the public side of the platform. (A question for another day: Why would the president of the United States and the attorney general be conducting government business on a nongovernment network, especially given Trump’s adamance that former Secretary of State Hillary Clinton should have been prosecuted for her recklessness in conducting government business on a nongovernment email system?)
Let me summarize what I contended in the above-linked column on Halligan’s appointment.
If a U.S. attorney position is vacant, Section 546 contemplates that the attorney general may make one interim appointment for a 120-day term. At the conclusion of 120 days, the interim U.S. attorney may continue only if the district court judges approve.
In the alternative, the statute says the court may appoint a U.S. attorney to serve until the vacancy is filled. But there’s a constitutional problem with that: U.S. attorneys are executive officers, which means the president may fire them at will. Hence, if the court tries to appoint a U.S. attorney of whom the president does not approve, the president will promptly dismiss that appointee. As I recounted in the column, that has happened in New Jersey, where Trump fired the attorney approved by the district court after the judges refused to extend his interim pick, Alina Habba.
As a practical matter, then, Section 546 calls for the administration and the court to cooperate on naming a suitable interim U.S. attorney while the president proceeds with what the Constitution demands: the nomination of a U.S. attorney who will be confirmed by the Senate within a reasonable time.
This is anathema to President Trump, who has shown, time and again, that he wants to govern unilaterally (even though our Constitution’s separation of powers principles resist unilateral action, empowering the branches to check each other). Naturally, rather than negotiating with the court in districts dominated by Democratic appointees (the appointee breakdown in Virginia is 7–4 in favor of Democrats), Trump is trying to bulldoze his way through the controlling statute.
In the EDVa, there has already been a 120-day interim appointment — Siebert’s. The statute does not permit a second such appointment for the same vacancy. Ergo, Halligan’s appointment is ultra vires. The president and his Justice Department will try to counter, however, either that the statute permits multiple 120-day interim appointments or that his firing of Siebert created a new vacancy for which a new 120-day interim appointment can be made.
The latter argument would be more plausible than the former but is still unpersuasive. When the court, at the Trump administration’s request, approved Siebert to continue beyond 120 days as U.S. attorney, this did not fill the vacancy; it was a temporary measure while the Senate considered Siebert’s nomination. Had Siebert been confirmed, that would have filled the vacancy. I don’t believe the president can lawfully manufacture a new vacancy by, first, asking the court to extend his interim U.S. attorney and then, after the judges have indulged the president’s request, firing that interim U.S. attorney.
If Halligan’s appointment were held invalid, a Pandora’s box could open. In National Labor Relations Board v. Canning (2014), when the Supreme Court invalidated “recess appointments” to the NLRB that President Obama had attempted to make when the Senate was not actually in recess, the effect was to nullify actions taken while the NLRB was improperly constituted. It could be that enforcement actions — such as the Comey indictment — that have been taken under the guise of Halligan’s authority would be similarly nullified.
In a normal case, that might not be a fatal problem. In Canning, for example, once the NLRB was properly constituted, it essentially reissued the decisions made under the invalid leadership. Similarly, once a new U.S. attorney was validly in place, most cases could just be re-indicted (double jeopardy protects us from being tried twice for the same crime; there is no bar to a subsequent indictment if the first is dismissed). But Comey’s case is different: because the government charged him at the end of the five-year statute of limitations period, which lapsed nine days ago, a new indictment on the same charges would be time-barred.
Notably, there is now chaos in New Jersey federal court. As I related in the above column, Judge Matthew Brann found that Alina Habba’s appointment as interim U.S. attorney was invalid under Section 546. The Justice Department has appealed that ruling, but the appeal has been complicated by a significant jurisdictional question: The Habba appointment was challenged by defendants whom her office is prosecuting, and it is not clear that an order disqualifying a prosecutor is a “final order” that is subject to appeal. In the interim, while the Third Circuit tries to sort out whether it can hear the appeal, a number of judges have paused proceedings in various criminal cases because it is unclear whether Habba has legitimate authority to oversee them.
The president’s determination to staff his second-term Justice Department with loyalists who could not be confirmed by the Senate, and to try to stretch statutes to keep those lawyers in place over the objections of judges and defendants, has always been a high-wire act. It appears that the resulting chaos is about to spread to the already controversial Comey prosecution.