Dem
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GOP
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U.S. District Judge Cameron Currie issued her ruling as to whether Lindsey Halligan, who purported to serve as interim U.S. Attorney for the Eastern District of Virginia, was lawfully appointed. In a word, the Judge's answer is: No. Currie, a senior district judge from South Carolina, was assigned to hear the motion to avoid a conflict of interest with the judges in Virginia's Eastern District.
Currie's decision was not unexpected. And it follows similar decisions finding that other U.S. Attorneys were unlawfully appointed, including Alina Habba in New Jersey and Bill Essayli in the U.S. Attorneys' Office in the Central District of California.
This fiasco saga began when Trump nominated Eric Siebert to serve as U.S. Attorney for the Eastern District of
Virginia. Unlike Essayli in California, his nomination was unopposed by the two Democratic senators from his state. He
was awaiting Senate confirmation and was serving in an interim capacity. Under the law, he could only serve for 120 days
in that role. Once that time elapsed, it then fell to the district court to put someone in that position, and they
decided to keep Siebert in the role. It was only after Siebert expressed his reluctance to pursue criminal charges
against New York AG Letitia James and former FBI Director James Comey that he was forced out of the position.
After Donald Trump publicly called for criminal charges to be filed against both James and Comey, Lindsey Halligan was then named as "interim" U.S. Attorney despite the fact that the 120 days had already expired, and the law does not allow successive interim appointments. Given that, it was a pretty easy question for the judge to decide, and she concluded the appointment was unlawful.
Since Halligan was unlawfully serving as U.S. Attorney, everything she did in that role was unauthorized and invalid. So, the Judge had to decide what happens to the cases against Comey and James. To address this, Currie closely examined Halligan's role in the grand jury proceedings. Not only was Halligan the only person to prepare and sign the indictments, she was the only person from her office to present the case to the grand jury. Because she acted alone, both indictments were improper. "This case presents the unique, if not unprecedented, situation where an unconstitutionally appointed prosecutor, exercising 'power [she] did not lawfully possess,' acted alone in conducting a grand jury proceeding and securing an indictment. In light of the near complete control that prosecutors wield over the grand-jury process, such an error necessarily 'affect[s] the entire framework within which the proceeding occurs...'" wrote Currie.
The Court also found that AG Pam Bondi's attempt to retroactively appoint Halligan as a "special attorney" was improper. While Halligan is indeed special, the Court held that "the Government has identified no authority allowing the Attorney General to reach back in time and rewrite the terms of a past appointment." Likewise, Bondi's argument that she "ratified" Halligan's actions after the fact and somehow made them legal was unpersuasive. "The implications of a contrary conclusion are extraordinary. It would mean the Government could send any private citizen off the street—attorney or not—into the grand jury room to secure an indictment so long as the Attorney General gives her approval after the fact. That cannot be the law."
Given that the indictments are invalid, the court dismissed both cases. But Currie dismissed them without prejudice, meaning the DoJ could re-indict. With respect to Comey, however, the problem for the government is that the statute of limitations ran its course on September 30, so that ship has likely sailed.
Meanwhile, flying under the radar is the Judge's order that only the district court has the authority to appoint an interim U.S. Attorney for the Eastern District of Virginia until Trump nominates someone who is confirmed by the Senate. So, conceivably the Court could ask Siebert to resume that role. That would be a poke in the eye to Trump, as we already know Siebert has no intention of re-indicting either James or Comey.
There's also another wrinkle to this story that could affect whether Letitia James is re-indicted. Bill Pulte, the guy currently heading up the Federal Housing Finance Agency, and who is ginning up all these alleged mortgage fraud cases, is himself under investigation for improperly combing through private data. Pulte has been a thorn in the side of other Trump officials along with Ed Martin, the self-appointed "weaponization" czar who's been shuffled around and is currently Jeanine Pirro's problem in the D.C. U.S. Attorney's office. Given the embarrassing missteps in these cases, they could make nice scapegoats and give the administration a way to save face and quietly move on from these overtly political prosecutions.
The other option in the James and Comey cases is an appeal, which the government says it will pursue. They might want to think twice about that. Yesterday's dismissals were on the relatively technical issue of the legality of Halligan's appointment. But the cases are full of other holes that have yet to be scrutinized by a judge, among them misconduct in front of the grand jury and vindictive and selective prosecution. The administration might want to consider taking its ball and going home, before suffering more and larger black eyes here. Of course, this group is not known for strategic thinking, so they will probably continue to tilt at very, very stupid windmills. (L)