Judge hears challenge to Trump’s appointment of Lindsey Halligan, prosecutor in James Comey and Letitia James cases
ALEXANDRIA, Va. — When Acting U.S. Attorney Lindsey Halligan appears in federal court here in Virginia Thursday morning, it will be Halligan — not the criminal defendants she hopes to prosecute — the center of the court’s attention.
Former FBI Director James Comey and New York Attorney General Letitia James, both frequent targets of President Donald Trump, have filed separate motions in their respective cases, arguing that Halligan is illegally serving as acting U.S. attorney and therefore the indictments against them should be dismissed. In a rare joint hearing, lawyers for Comey and James will argue the point together before U.S. District Judge Cameron Currie, who is from the District of South Carolina.
Currie is hearing this joint oral argument, not a judge from the Eastern District of Virginia, to avoid any potential conflicts of interest within the district.
Halligan, who was part of Trump’s legal team in the Mar-a-Lago classified documents case but has no prior prosecutorial experience, was sworn in as acting U.S. attorney in one of the nation’s busiest federal judicial districts on September 22. That’s three days after Erik Siebert, the U.S. attorney in office since Jan. 21, resigned after coming under pressure to indict Comey and James.
The indictments against Comey and James came after Trump publicly urged Attorney General Pam Bondi to take action against Comey, James and another of the president’s adversaries, Sen. Adam Schiff, Democrat of California. Both Comey and James have pleaded not guilty to their respective charges.
“We cannot wait any longer, this is killing our reputation and credibility,” the president wrote in a September 20 Truth Social article. “JUSTICE MUST BE SERVED, NOW!!! »
Under federal law, individuals can only serve for 120 days after being appointed as U.S. Attorneys, unless confirmed by the U.S. Senate before then. The Senate had not confirmed him, but judges in the Eastern District of Virginia exercised their own independent appointment power to legally retain Siebert as acting U.S. attorney beyond the 120-day limit.
It’s that 120-day limit that James and Comey’s lawyers say shouldn’t start from scratch with Halligan’s nomination.
“If the Attorney General could make consecutive appointments of acting U.S. attorneys, the 120-day period would become meaningless and the Attorney General could indefinitely evade alternative procedures imposed by Congress,” Comey lawyer Patrick Fitzgerald wrote in a motion to dismiss the indictment against his client.
Comey was accused in late September of making a false statement to Congress during a Senate Judiciary Committee hearing in September 2020. Asked by Sen. Ted Cruz, R-Texas, about testimony he gave in 2017 claiming he did not authorize the leak of information to the media about an FBI investigation into the Clinton Foundation, Comey said, “I stand by that testimony.”
Trump first clashed with Comey during his first term over the then-FBI director’s handling of the federal investigation into the Trump campaign’s alleged ties to Russia. Comey was fired in May 2017 and has been an outspoken critic of Trump ever since.
The Justice Department said in court papers that it believes Comey’s indictment — signed only by Halligan and unsealed days before the five-year statute of limitations expired — should survive this challenge to Halligan’s nomination, regardless of Currie’s decision, because of U.S. Code 3288, the law that governs this very issue.
“Whenever an indictment or information charging a crime is dismissed for any reason after the expiration of the time prescribed by the applicable statute of limitations, a new indictment may be returned to the appropriate jurisdiction within six calendar months after the date of the dismissal of the indictment or information,” the law reads in part.
According to legal experts at NBC News, this six-month grace period could be key for the Justice Department to pursue charges against the former FBI director. The bank fraud charge that James, who sued Trump and his companies for fraud in 2022, faces is well within the 10-year statute of limitations.
Bondi has taken steps in recent weeks to shore up Halligan’s position.
On October 31, Bondi issued a formal order retroactively appointing Halligan as a “special prosecutor” within the Justice Department effective September 22 – three days before Comey’s indictment – and wrote: “If a court finds that Ms. Halligan’s authority as special prosecutor is limited to particular matters, I hereby delegate to Ms. Halligan the authority as special prosecutor to conduct and supervise the prosecution” against Comey and James.
Halligan also faces several complaints from the Florida and Virginia Bars, filed by the left-leaning watchdog group Campaign for Accountability.
“Ms. Halligan’s actions appear to constitute an abuse of authority and serve to undermine the integrity of the Department of Justice (DOJ) and erode public confidence in the legal profession and in the fair administration of justice,” the complaint states.
Several other U.S. attorneys appointed by Trump also face legal challenges to their appointments.
In late September, a federal judge in Nevada ruled that Acting U.S. Attorney Sigal Chattah must be disqualified from that role due to a violation of the federal Vacancy Reform Act.
In August, a New Jersey federal judge ruled that Alina Habba “did not lawfully serve as United States Attorney” due to the expiration of her 120-day interim term, and that her actions since July as New Jersey’s top federal prosecutor could be declared void.
