Former FBI Director James Comey and New York Attorney General Letitia James argued Halligan was invalidly appointed.
ALEXANDRIA, Va.—A federal judge considered on Nov. 13 whether to dismiss the cases against former FBI Director James Comey and New York Attorney General Letitia James on the basis that the prosecutor who brought those indictments was invalidly appointed.
It was one of two hearings expected over attempts to dismiss the cases and raised questions about the administration’s attempts to fill vacancies amid difficulty getting nominations through the Senate.
Federal law allows the attorney general to fill vacant U.S. attorney spots, but debate has emerged over how that replacement should, in turn, be replaced. Under 28 U.S.C. Section 546, Congress allows interim attorneys to serve for 120 days, further providing that district courts “may appoint” a U.S. attorney to fill vacancies at the end of that timeframe if the Senate hasn’t already appointed a replacement.
Comey’s and James’s cases were both brought by Lindsey Halligan, a former White House advisor whom the administration installed as the interim U.S. Attorney for the Eastern District of Virginia. Halligan had replaced Erik Siebert, who was acting as interim U.S. attorney for the district and is thought to have resisted prosecuting James.
Comey’s and James’s attorneys told U.S. District Judge Cameron McGowan Currie that Halligan’s appointment was illegal because it occurred 244 days after Siebert’s appointment. As such, it fell outside of the 120-day timeframe that federal law set up for interim appointments, they argued. And, they alleged, because the administration didn’t obtain Senate approval, it also violated the Appointments Clause of the Constitution.
Comey’s attorney, Ephraim McDowell, told Currie that she should dismiss Comey’s case with prejudice in order to deter, and not reward, the administration’s alleged violation of the Constitution. Dismissal with prejudice would prevent the same case from later being brought against Comey. James, meanwhile, has requested dismissal in addition to an injunction preventing Halligan from acting as interim U.S. attorney.
The Justice Department disputed the defense’s interpretation of the law, arguing instead that the law didn’t confine the attorney general to an initial 120 days. Rather, it said, the law allowed for successive appointments of attorneys who would each have 120-day limits on their time in office.
By Sam Dorman
