By Jan Wolfe
WASHINGTON (Reuters) -The unusual process President Donald Trump used to handpick the prosecutor who charged two of his political foes — New York Attorney General Letitia James and former FBI director James Comey — could derail the closely watched prosecutions, legal experts said.
Both Comey and James in court filings have argued that their criminal cases must be dismissed on the grounds that the prosecutor who brought them, Lindsey Halligan, is not validly serving in her role as the interim U.S. Attorney for the Eastern District of Virginia.
“There’s a strong argument that Halligan’s appointment was invalid,” said Thomas A. Berry, a legal scholar at the Cato Institute, a libertarian think tank.
If a court comes to that conclusion, and also determines that Halligan acted alone in securing the indictments of Comey and James, those indictments “become invalid because she didn’t have lawful authority” to bring them, Berry said.
BYPASSING THE SENATE
Trump has used legal workarounds to install loyalists in a handful of top prosecutorial jobs around the country, circumventing the traditional process of having the U.S. Senate confirm nominees. Comey and James’s defense has highlighted the pitfalls of that approach, said Patrick Cotter, a former federal prosecutor now at the law firm UB Greensfelder.
Halligan was sworn in last month, despite having no prosecutorial experience.
She has spent much of her 11-year legal career on local insurance cases in Florida state court. After meeting Trump in 2021, she represented him in a handful of lawsuits. She became a White House aide earlier this year.
Halligan’s predecessor, Erik Siebert, resigned amid pressure from Trump administration officials to bring criminal cases against James and Comey. Siebert believed the evidence against them was weak, two people familiar with the matter told Reuters at the time.
The Justice Department, which did not respond to a request for comment, is expected to submit a court filing on Nov. 3 explaining why Halligan’s appointment is lawful. In other cases involving the legality of Trump appointments, the Justice Department has said U.S. law gives the president numerous ways to appoint public officials and that Trump’s administration has carefully complied with legal requirements.
TRUMP DEMANDED ACTION
Hours before announcing Halligan’s appointment, Trump had urged U.S. Attorney General Pam Bondi to quickly bring criminal charges against Comey, James, and Democratic Senator Adam Schiff, who is facing a mortgage fraud investigation.
“They’re all guilty as hell…we can’t delay any longer,” Trump said in the September 20 post on Truth Social, which multiple U.S. media outlets reported was intended to be a private message to Bondi.
Comey and James have pleaded not guilty and have said they will seek dismissal of the charges on multiple grounds, including that Halligan’s appointment was invalid.
Schiff, who has not been criminally charged, has called the mortgage fraud investigation “baseless” and “politically motivated.” The investigation into Schiff is being handled by prosecutors in Maryland, so Halligan is not involved in it.
In an order memorializing Halligan’s appointment, Bondi said the legal basis for it is a statute known as Section 546 that allows for 120-day interim appointments of U.S. attorneys.
Section 546 states that, if the 120 days expire without a Senate-confirmed appointee, the federal judges in the relevant district may then appoint a U.S. attorney.
The Justice Department already used Section 546 to appoint Siebert, Halligan’s predecessor. After his 120-day interim period ended, federal judges voted unanimously to keep him in the job.
QUESTIONS ABOUT 120-DAY LIMIT
According to some legal experts, the best interpretation of Section 546 is that it does not allow for a second interim appointment once a first interim appointee has hit the 120-day limit.
Comey adopted this position in a recent motion to dismiss his indictment, arguing that the “only logical reading” of Section 546 is that it “limits the total tenure of the Attorney General’s interim appointments to 120 days.” Otherwise, the executive branch could keep appointing an endless stream of interim U.S. attorneys for 119 days, without ever needing Senate approval.
While Section 546 has rarely been interpreted by the courts, there is a recent opinion endorsing Comey and James’ reading of the statute. In that decision, a judge concluded that another former Trump lawyer, Alina Habba, has been unlawfully serving as the U.S. attorney in New Jersey. Habba has appealed that decision and remains in the role while her appeal is pending.
There is also a Justice Department memo from 1986 that interprets Section 546 the same way Comey and James do today. The author of that memo was Supreme Court Justice Samuel Alito, back when he was a young government lawyer and not the famous conservative jurist he is today.
If the appointment is ruled invalid, there is some uncertainty over what happens next and whether the James and Comey indictments need to be dismissed.
In the ruling about Habba, the judge said the Justice Department could still move forward with indictments signed by her so long as other prosecutors in her office had helped secure those indictments.
But Halligan presented both the Comey and James cases alone. That will make it more difficult for the Justice Department to revive the cases if Halligan’s appointment is ruled invalid, said Cotter, the former federal prosecutor.
Halligan’s appointment was “the executive branch removing the legislative branch from the appointment process,” he said.
“And the Constitution says you can’t do that, that they have to both be involved,” Cotter said.
(Reporting by Jan Wolfe; editing by Scott Malone and Deepa Babington)
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