The judges of the district are conflicted because of their statutory role in questions about interim district U.S. attorneys.

Over the weekend, I posted a recap of developments in the Trump Justice Department’s false-statement case against former FBI Director James Comey. Among other things, the post outlines the substance of and schedule for pretrial defense motions to dismiss the indictment, including one — likely to be filed by next Monday — arguing that the charges are illegitimate because the interim U.S. attorney who brought them was illegally appointed.

At last week’s arraignment hearing, Judge Michael Nachmanoff, the Biden-appointee who is presiding over the case, indicated that a judge from outside the Eastern District of Virginia (EDVa) will be specially appointed to rule on that issue.

In late September, President Trump directed Attorney General Pamela Bondi to appoint Lindsey Halligan as interim U.S. attorney — i.e., to replace Erik Siebert, the interim U.S. attorney Trump had appointed but later fired over his refusal to indict Comey and New York Attorney General Letitia James. At the time, I contended that the appointment of Halligan — a 36 year-old former Florida insurance lawyer and Trump White House staffer who had never been a prosecutor — was probably unlawful. (See Ed Whelan’s insightful posts on the issue here and here.)

In a nutshell, if there is a vacancy in the U.S. attorney post, the governing statute (Section 546 of Title 28, U.S. Code) allows the attorney general to appoint an interim U.S. attorney for a maximum of 120 days. After President Trump took office in January, his Justice Department appointed Siebert as interim U.S. attorney — and the president nominated Siebert to be full-fledged U.S. attorney, pending Senate confirmation (a process never concluded because Trump pulled the nomination upon firing Siebert).

At the conclusion of the 120-day statutory term, an interim U.S. attorney may only continue in the job if the judges of the district court vote to approve that arrangement. The judges of the EDVa, including Judge Nachmanoff, voted to approve Siebert’s continuation as U.S. attorney, pending his confirmation. (As I understand it, the public is not told how the individual judges voted, only that the district court as a body approved the continued service of the U.S. attorney.)

It appears that the Trump Justice Department will try to argue both that (a) under Section 546 (and/or the president’s Article II constitutional authority) the executive branch is permitted to make multiple appointments to fill a district U.S. attorney vacancy; and (b) Trump’s firing of Siebert created a new vacancy that permitted a new interim appointment. For the reasons I’ve previously argued, I don’t believe these arguments are meritorious.

Before the court gets to the merits, however, there is the issue of “who gets to decide?”

Judge Nachmanoff appears to have prudently determined that neither he nor the judges of the EDVa should rule on that question. They are actors in the facts under review, having voted on Siebert’s continuation in office. As judges in the district, they might be in a position at some point to vote on Halligan’s appointment, and in the meantime they would be presiding over cases in which she represents the United States — cases that opposing parties may challenge by contending that Halligan has been illegally appointed.

To take a similar example, when Alina Habba’s 120-day interim appointment lapsed in the District of New Jersey, the DNJ judges voted not to extend her appointment. When the Trump administration tried to extend it anyway, and some defendants sought dismissal of their cases, arguing that Habba was unlawfully appointed, the Third Circuit designated Judge Matthew W. Brann, the chief judge of the Middle District of Pennsylvania, to decide the issue. (Judge Brann ruled that Habba’s appointment was unlawful; that decision is currently on appeal before the Third Circuit, although there are complications about whether the Circuit has jurisdiction.)

I believe Judge Nachmanoff will follow that playbook. Look for the Fourth Circuit to appoint an experienced judge with no potential conflicts of interest to decide Comey’s motion to dismiss based on the claim that Halligan’s is ultra vires. The Fourth Circuit includes the federal courts of Virginia, Maryland, West Virginia, and the Carolinas.