interim u. s. attorney

WASHINGTON — A federal judge’s dismissal of criminal cases against former FBI Director James Comey and New York Attorney General Letitia James, two political foes of President Trump, won’t be the final word on the matter.

The Justice Department says it plans to immediately appeal a pair of rulings that held that Lindsey Halligan was illegally appointed interim U.S. attorney for the Eastern District of Virginia. It also has the ability to try to refile the cases, though whether it can successfully secure fresh indictments through a different prosecutor is unclear, as is whether any new indictments could survive the crush of legal challenges that would invariably follow.

A look at the possible next steps:

What exactly did the rulings say?

At issue is the slapdash way the Trump administration raced to put Halligan in charge of one of the Justice Department’s most elite offices. A White House aide with no prior experience as a federal prosecutor, Halligan was named interim U.S. attorney in September after the veteran prosecutor who held the job, Erik Siebert, was effectively forced out amid Trump administration pressure to charge Comey and James.

U.S. attorneys, top federal prosecutors who oversee regional Justice Department outposts across the country, are typically nominated by the president and confirmed by the Senate, though attorneys general do have the authority to directly appoint interim U.S. attorneys who can serve in the job for 120 days.

But lawyers for Comey and James argued that the law empowers only one such temporary appointment and that, after that, federal judges in the district have say over who fills the vacancy until a Senate-confirmed U.S. attorney can be installed.

Since Halligan replaced an interim U.S. attorney who had already served for more than 120 days, the lawyers said, her appointment was invalid and the indictments she secured must be dismissed as a result.

U.S. District Judge Cameron McGowan Currie overwhelmingly agreed. Currie, an appointee of President Bill Clinton who was assigned to hear the dispute despite serving in South Carolina, not only dismissed the cases but also concluded that Halligan had been serving illegally in her position since the day she was sworn in.

Could the Justice Department appeal?

Yes, and Atty. Gen. Pam Bondi indicated that the department would do exactly that.

Any appeal would first be considered by the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, but theoretically could go all the way up to the Supreme Court and present a fresh constitutional test about the Justice Department’s appointment authority.

Interestingly, Currie implied that her interpretation of the law might be well-received by at least one current conservative member of the Supreme Court.

In a footnote, she cited a 1986 legal memo from Samuel Alito, then a deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, that concluded that the Justice Department could not make another temporary appointment after a first 120-day period expired.

Can the cases be filed again?

Since the cases were dismissed “without prejudice,” the Justice Department is clearly able to seek a new indictment against James using a different prosecutor with lawful authority to present to the grand jury.

The question, however, is much trickier in Comey’s case. It’s complicated by the fact that the five-year statute of limitations — or the limited time in which charges can be filed — expired at the end of the September, just days after Halligan raced to present to the grand jury.

Federal law allows prosecutors to return a new indictment within six months of dismissal even after the statute of limitations has passed. But Comey’s lawyers said they will argue the judge’s ruling makes the indictment “void,” and therefore “the statute of limitations has run and there can be no further indictment.”

The judge noted in her ruling that the deadline had passed and suggested that the statute of limitations is not tolled — or paused — in the case of an “invalid indictment.” Quoting from an earlier ruling, the judge wrote that “if the earlier indictment is void, there is no legitimate peg on which” to extend the deadline.

Regardless, the Justice Department in either case would have to convince a new grand jury to return new indictments, and that may be harder given the intense publicity around the cases. Widespread media coverage of the allegations and the defense claims of improper conduct by prosecutors could make it more difficult to find grand jurors who can view the cases impartially.

What happens to the other challenges to the indictments?

For now, those arguments are all moot as the Justice Department labors to salvage the indictments.

But in the event prosecutors do succeed in getting new indictments, they’ll likely have to fend off some of the same challenges that Comey and James had already raised and that remain pending as of Monday’s rulings.

Comey is charged with lying to Congress about whether he authorized an associate to serve as an anonymous source for the news media. James was charged with bank fraud and making false statements to a financial institution in connection with a home purchase in Norfolk, Va., in 2020.

Both have pleaded not guilty and had urged judges to throw out their indictments on grounds that the prosecutions were illegally vindictive and emblematic of a Justice Department that’s been weaponized to pursue the president’s adversaries. Those arguments would presumably be revived in the event of any new indictments.

Comey, for his part, has challenged a series of irregularities in Halligan’s presentation to the grand jury after a different judge who reviewed a record of the proceedings said he had identified a series of flaws — including the fact that the prosecutor apparently suggested to the panel that Comey did not have a Fifth Amendment right to not testify at trial.

He has also said that the testimony he gave to the Senate Judiciary Committee that underpins his criminal case was truthful and that, in any event, the question he was responding to was so vague and ambiguous as to make a false statement prosecution a legal impossibility.

Tucker and Richer write for the Associated Press.

ALEXANDRIA, Va. — The Justice Department acknowledged in court Wednesday the grand jury that charged former FBI Director James Comey was not presented with a copy of the final indictment, a concession that may further imperil a prosecution already subject to multiple challenges and demands for its dismissal.

The revelation is the latest indication of a troubled presentation of the case to the grand jury by an inexperienced and hastily appointed U.S. attorney named to the job just days earlier by President Trump.

Concerns about the process surfaced earlier in the week when a different judge in the case said there was no record in the transcript he had reviewed of the grand jury reviewing the indictment that was actually presented against Comey.

Lindsey Halligan, the interim U.S. attorney in charge of the case, said under questioning that only the foreperson of the grand jury and a second grand juror were present for the returning of the indictment.

Comey has pleaded not guilty to charges accusing him of making a false statement and obstructing Congress and has denied any wrongdoing.

The Justice Department has denied that the prosecution was vindictive or selective and insists that the allegations support the indictment.

Trump fired Comey as FBI director in May 2017 as Comey was overseeing an FBI investigation into potential ties between Russia and Trump’s 2016 campaign. The two have been publicly at odds ever since, with Trump deriding Comey as “a weak and untruthful slime ball” and calling for his prosecution.

Tucker and Kunzelman write for the Associated Press.

ALEXANDRIA, Va. — Lawyers for two of President Trump’s foes who have been charged by the Justice Department asked a judge on Thursday to dismiss the cases against them, saying the prosecutor who secured the indictments was illegally installed in the role.

U.S. District Judge Cameron McGowan Currie didn’t immediately rule from the bench but said she expects to decide by Thanksgiving on challenges to Lindsey Halligan’s appointment as interim U.S. attorney for the Eastern District of Virginia.

The requests are part of multiprong efforts by former FBI Director James Comey and New York Attorney General Letitia James to get their cases dismissed before trial.

At issue during Thursday’s arguments are the complex constitutional and statutory rules governing the appointment of the nation’s U.S. attorneys, who function as top federal prosecutors in Justice Department offices across the country.

The role is typically filled by lawyers who have been nominated by a president and confirmed by the Senate. Attorneys general do have the authority to get around that process by naming an interim U.S. attorney who can serve for 120 days, but lawyers for Comey and James note that once that period expires, the law gives federal judges of that district exclusive say over who can fill the vacancy.

But that’s not what happened in this instance.

After then-interim U.S. attorney Erik Siebert resigned in September while facing Trump administration pressure to bring charges against Comey and James, Attorney General Pam Bondi, at Trump’s public urging, installed Halligan to the role.

Siebert had been appointed by Bondi in January to serve as interim U.S. attorney. Trump in May announced his intention to nominate him and judges in the Eastern District unanimously agreed after his 120-day period expired that he should be retained in the role. But after the Trump administration effectively pushed him out in September, the Justice Department again opted to make an interim appointment in place of the courts, something defense lawyers say it was not empowered under the law to do.

Prosecutors in the cases say that the law does not explicitly prevent successive appointments of interim U.S. attorneys by the Justice Department and that, even if Halligan’s appointment is deemed invalid, the proper fix is not the dismissal of the indictment.

Comey has pleaded not guilty to charges of making a false statement and obstructing Congress, and James has pleaded not guilty to mortgage fraud allegations. Their lawyers have separately argued that the prosecutions are improperly vindictive and motivated by the president’s personal animus toward their clients, and should therefore be dismissed.

Tucker writes for the Associated Press.