Former FBI director James Comey and current New York State Attorney General Letitia James have argued that their recent indictments are politically motivated prosecutions fuelled by Donald Trump’s animus.
In a bid to have their charges thrown out, they are arguing that Trump’s hand-picked attorney who brought the indictment in Virginia is improperly in her role, and a Justice Department memo written long ago by a current Supreme Court justice could be utilized to support their view.
A hearing was taking place Thursday in Alexandria, Va., though a decision on the matter isn’t expected immediately.
The Trump administration has suffered defeats this year on similar challenges concerning appointments in New Jersey, Nevada and California.
The 120-day argument
In order to understand this argument, one has to back up. Just hours into Trump’s second administration, and as with any new presidency involving a change of political party, former officials departed and new ones were ushered in.
One such appointment involved Erik Siebert being sworn in as the interim U.S. Attorney for the Eastern District of Virginia. The expectation for such appointments is they will eventually be signed off on by the Senate through a confirmation vote, which did not occur for Siebert.
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Siebert resigned on Sept. 19, just days before Comey was indicted on a charge of making a false statement to Congress, and one charge of obstructing a congressional proceeding, and just a few weeks before James had been indicted on allegations of mortgage fraud.
Siebert hasn’t publicly stated he refused to bring either or both of those indictments, but some Democrats in Congress believed the timing to be very suspicious. Trump hours later in a social media post claimed he fired Siebert.
Halligan, with a background not in criminal prosecutions but insurance law, was appointed to succeed Siebert by U.S. Attorney General Pam Bondi on Sept. 22. Halligan had been one of a retinue of personal lawyers for Trump when he was a private citizen between his presidential terms, and she was serving as a White House adviser until September.
John McKay, an attorney who once served during George W. Bush’s administration, told Democracy Docket at the time that he considered her appointment “unconstitutional” and “unlawful.”
“Trump wants to skip constitutional safeguards in order to carry out retribution,” McKay said.
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Halligan brought the indictments forth just days after her appointment, and also soon after Trump beseeched Bondi in a social media post — that may have been intended as a text message — that “we can’t delay any longer” and that Comey, James and Democratic Rep. Adam Schiff were “guilty as hell.”
While it’s not clear, Trump’s “delay” remark may have been related to the fact that the charges Comey ultimately faced have a five-year statute of limitations that was set to expire by October.
‘No magic wand’
Attorneys for Comey and James will argue that Halligan’s appointment violates a federal law they said limits the appointment of an interim U.S. attorney to one 120-day stint. Repeated interim appointments would bypass the Senate confirmation process and allow a prosecutor to serve indefinitely, they say.
The Justice Department plans to argue that Halligan’s appointment was lawful, saying that nothing in the law “explicitly or implicitly precludes the Attorney General from making additional appointments.” In late October, Bondi retroactively gave Halligan a second title of “Special Attorney” and said she is authorized to supervise both prosecutions.
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Andrew McCabe, who for a time succeeded Comey as FBI director and was also subject to Trump’s ire, expressed wonderment at that move this week in an episode of the podcast The Awkward Docket.
“Even someone like Pam Bondi does not have the magic wand covered in fairy dust that it would take to do this. It does not work that way,” said McCabe, who successfully got his FBI pension back after Trump in his first term tried to deny the compensation upon firing him.
Even some conservatives with no past history with Trump like McCabe have argued that Halligan may not have been validly appointed.
With respect to the long-ago Justice Department memo, current Supreme Court Justice Samuel Alito wrote while working in the Ronald Reagan administration that “it would appear that Congress intended to confer on the Attorney General only the power to make one interim appointment.”
“At most,” Alito continued in the 1986 memo, “it could be said that the district court has the primary authority to make subsequent interim appointments, and that the Attorney General may make such appointments only if the district court refuses to make such appointments, or fails to do so within a reasonable period.”
Arguments were being heard Thursday on the matter by Cameron McGowan Currie, a South Carolina-based federal judge appointed by former Democratic president Bill Clinton, given that Virginia judges needed to recuse over potential conflicts.
According to an Associated Press report from the court, Currie said she expects to rule before Thanksgiving, which is Nov. 27 in the U.S.
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What about these other state rulings?
Three men facing federal firearms charges sought to have their indictments tossed, contending that Bill Essayli was improperly in the U.S. Attorney role out of the Central District of California. Essayli’s 120 days expired on July 29. The Trump administration sought to use a subsequent appointment as “acting” head of the office to continue Essayli’s stewardship of the office.
In a decision late last month, a judge ruled that Essayli was disqualified from bringing those cases forward, though the three indictments can proceed with others at the helm.
A similar judge’s ruling saw Trump appointee Sigal Chattah disqualified in Nevada, though the Justice Department has appealed that ruling. As well, the four criminal defendants who brought the challenge did not have their cases vacated.
The first adverse ruling against the Trump administration concerned Alina Habba, who like Halligan previously served Trump as a personal lawyer and as a White House adviser. A judge ruled in August that the administration used a “novel series of legal and personnel moves” to keep Habba as U.S. Attorney for the District of New Jersey.
Bondi blasted the decision, saying they’d appeal and “protect her position from activist judicial attacks.”
If a decision on Halligan goes against the administration, it remains to be seen how far they will go to proceed with criminal prosecutions of Comey and James, whose chances for a conviction have been hotly debated by U.S. legal analysts.
As previously stated, the Comey charges contain a five-year statute of limitations that expired in September. James, however, faces charges that have a 10-year statute of limitations.
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