Federal Judge Dismisses Comey and James Indictments, Saying Trump's U.S. Attorney Appointment Was Illegal

The charges were dismissed without prejudice, so the Justice Department can try again.

On September 20, President Donald Trump announced that he had picked Lindsey Halligan, a former Trump defense lawyer with no prosecutorial experience, to replace Erik Siebert as the interim U.S. attorney for the Eastern District of Virginia. Trump was displeased with Siebert because he was not inclined to prosecute two of the president's nemeses: former FBI Director James Comey and New York Attorney General Letitia James. Halligan showed no such reluctance, delivering a perjury and obstruction indictment of Comey three days after taking office and a mortgage fraud indictment of James two weeks later.

On Monday, a federal judge dismissed both of those indictments without prejudice after concluding that Halligan had been illegally appointed. Those decisions do not put an end to the criminal cases against Comey and James, since the Justice Department can refile the charges. But the grounds for dismissal reflect the grudge-motivated nature of both cases, which drove Trump and Halligan to take shortcuts that doomed the indictments.

"I agree with Mr. Comey that the Attorney General's attempt to install Ms. Halligan as Interim U.S. Attorney for the Eastern District of Virginia was invalid," U.S. District Judge Cameron Currie writes. "And because Ms. Halligan had no lawful authority to present the indictment, I will grant Mr. Comey's motion and dismiss the indictment without prejudice." Currie reached the same conclusion in James' case.

Comey and James argued that their indictments were invalid because Halligan's appointment violated 28 USC 546, which addresses vacancies in U.S. attorney's offices. That law authorizes the attorney general to appoint a temporary replacement, who can then serve no more than 120 days unless the judges of the district authorize an extension.

Jessica Aber, who served as the U.S. attorney for the Eastern District of Virginia during the Biden administration, resigned on January 20. She was replaced by Siebert, whose temporary appointment would have expired on May 21. But on May 9, the district's judges voted to let him remain in that position pending the appointment of a permanent U.S. attorney.

After Trump pressured Siebert to resign, Attorney General Pam Bondi tried to restart the clock by appointing Halligan as another interim U.S. attorney. That maneuver, Comey's lawyers argued, was clearly inconsistent with the constraints imposed by Congress.

"The text of Section 546 establishes a clear framework for the appointment of interim U.S. Attorneys," they wrote in a motion filed on October 20. "The Attorney General 'may appoint' an interim U.S. Attorney; Attorney General appointees may serve for '120 days' following the Attorney General's invocation of her appointment authority; after that period 'expires,' the 'district court for such district may appoint a United States attorney to serve until the vacancy is filled.'"

That framework "starts the clock from the time of the Attorney General's initial appointment of an interim U.S. Attorney and limits the total tenure of the Attorney General's interim appointments to 120 days," the motion said. "That is the only logical reading of the provision: 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. The text thus precludes an additional appointment by the Attorney General after the expiration of that 120-day period."

James' lawyers made the same argument in an October 24 motion to dismiss her indictment. Albert Diaz, the chief judge of the U.S. Court of Appeals for the 4th Circuit, appointed Currie, a senior judge on the U.S. District Court for the District of South Carolina, to resolve the dispute.

"Section 546 is unambiguous," Currie writes. "The text and structure of subsection (d) in particular make clear the appointment power (1) shifts to the district court after the 120-day period and (2) does not revert to the Attorney General if a court-appointed U.S. Attorney leaves office before a Senate-confirmed U.S. Attorney is installed." Subsection (d) specifies what happens "if an appointment [by the attorney general] expires under subsection (c)(2)." In that case, "the district court for such district may appoint a United States attorney to serve until the vacancy is filled."

Given that phrasing, Currie says, "the expiration of any single Attorney General appointment satisfies the condition. Thus, if, as here, a court-appointed U.S. Attorney resigns, the district court retains the authority to make another interim appointment because the triggering event—the expiration of 'an appointment' under subsection (c)(2) —has already occurred. Finally, the conjunction 'until' in subsection (d)'s main clause defines the duration of the district court's authority. It lasts from the moment the condition is first met 'up to the time that' the vacancy is filled by a Senate-confirmed appointee."

Under the government's interpretation, Currie notes, "Attorney General appointees can 'serve indefinitely' 'without Senate confirmation' as long as the Attorney General 'revisit[s] her interim appointments every 120 days.' But if that were correct, the Attorney General could prevent interim appointments from ever 'expir[ing] under subsection (c)(2),' which in turn would prevent the district court from ever exercising its appointment power under subsection (d). Such a result would run counter to the principle that courts must avoid interpreting statutes in a way that has the 'practical effect' of rendering a provision 'entirely superfluous in all but the most unusual circumstances.'"

Having concluded that Halligan's appointment was illegal, Currie rejects Bondi's attempt to validate the indictments after the fact by retroactively appointing Halligan as a "special attorney." The government, she says, "has identified no authority allowing the Attorney General to reach back in time and rewrite the terms of a past appointment."

Bondi "'could not have authorized' Ms. Halligan, who was not an attorney for the Government at the time, to present Mr. Comey's indictment to the grand jury on
September 25," Currie writes. "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."

Crucially, Halligan was the sole prosecutor who sought and signed the indictments, which reflected internal skepticism about the cases. Based on the relevant Supreme Court precedents, Currie concludes that dismissal without prejudice is the appropriate remedy when "an unconstitutionally appointed prosecutor, exercising 'power [she] did not lawfully possess,' act[s] alone in conducting a grand jury proceeding and securing an indictment."

Trump's decision to replace Siebert with Halligan was a desperate move driven by personal vendettas. "We can't delay any longer," he told Bondi on September 20, when he publicly ordered her to prosecute Comey and James. "JUSTICE MUST BE SERVED, NOW!!!"

In Comey's case, which is tied to congressional testimony he gave on September 30, 2020, Halligan barely made the statutory deadline for filing charges. And in both cases, the charges were so iffy that neither Siebert nor the career prosecutors in his office thought they were worth pursuing. But for that resistance, Trump would not have felt compelled to make the appointment that Currie deemed illegal, and Halligan would have had some company in seeking the indictments, which might have prevented these embarrassing setbacks.