Executive Summary
The Story So Far
Why This Matters
Who Thinks What?
James Comey’s defense team plans to challenge the authority of interim US Attorney Lindsey Halligan in his upcoming January trial for charges of lying to Congress. This legal maneuver, outlined in court on Wednesday, aims to dismiss the charges and is part of a broader trend of scrutinizing President Trump’s unconfirmed appointments for top prosecutorial roles across the country.
Challenging Halligan’s Authority
Comey’s strategy will specifically target Halligan’s legitimacy as the US Attorney for the Eastern District of Virginia. The defense is expected to argue that Halligan’s appointment exceeds the 120-day legal limit for interim US attorneys and that she does not meet the statutory exceptions for such vacancies, particularly regarding prior Justice Department employment or Senate confirmation.
Halligan’s situation is deemed particularly vulnerable because she was sworn in just days before taking the indictment against Comey through a grand jury. She previously served in the White House and has no prior prosecutorial experience, which defense attorneys are likely to highlight.
The Justice Department is scheduled to present its arguments in defense of Halligan’s appointment in early November. Attorney General Pam Bondi has publicly supported Halligan, stating, “Our EDVA US Attorney Lindsey Halligan did an outstanding job.”
Precedent from Other Challenges
The challenge against Halligan is one of several recent efforts by criminal defense lawyers nationwide to question President Trump’s use of top prosecutors who have not received Senate confirmation. Some of these challenges have already yielded successful outcomes for defendants.
Federal judges in New Jersey and Nevada previously found that the Justice Department violated the Federal Vacancies Reform Act when naming acting US attorneys Alina Habba and Sigal Chattah, respectively. In both instances, Trump’s appointees attempted to circumvent the 120-day interim term limit by resigning and being re-appointed to different roles with delegated authority, a move the courts deemed unlawful.
While judges in those cases disqualified Habba and Chattah from working on specific cases, they did not dismiss the underlying indictments, largely because neither prosecutor was directly involved in presenting evidence to the grand jury.
Uniqueness of the Comey Indictment
The Comey case presents a distinct element: Halligan personally presented the evidence to the grand jury. Legal experts, such as University of Michigan law professor Nina Mendelson, suggest that if Halligan’s appointment is found invalid, Comey has a stronger argument for dismissal, especially if the law does not permit successive interim appointments by the Attorney General.
The bar for dismissing an indictment based on an invalid signature is high, typically requiring a showing of misconduct or prejudice to the grand jury. However, the direct involvement of Halligan distinguishes this situation from previous challenges.
Similar challenges are ongoing, including one in the Central District of California concerning US Attorney Bilal “Bill” Essayli, whose authority is being questioned after his 120-day interim period allegedly expired. Past cases, such as the classified records mishandling charges against Donald Trump in Florida and an election conspiracy case in Georgia, have also seen prosecutors disqualified, impacting the proceedings.
Implications for Trump’s Appointments
The ongoing legal challenges against President Trump’s interim US Attorney appointments underscore a broader scrutiny of executive branch authority and adherence to statutory limits. The outcome of Comey’s motion could have significant implications for the validity of other high-profile prosecutions overseen by unconfirmed officials.
