The Department of Justice is asking a federal appeals court to overturn a consequential ruling that resulted in the dismissal of criminal cases against former FBI Director James Comey and New York Attorney General Letitia James.
The Fourth Circuit Court of Appeals will hear arguments Tuesday in the government’s bid to reverse a federal judge’s ruling that found the prosecutor who secured the indictments — former Interim U.S. Attorney Lindsey Halligan — had been unlawfully appointed. That finding prompted U.S. District Judge Cameron Currie to toss out both criminal cases last November. The cases were dismissed without prejudice, though, meaning the DOJ could potentially revive them in the future.
Currie ruled that Halligan, a former Trump aide with no prosecutorial experience, had been unlawfully appointed to her position as Interim U.S. Attorney for the Eastern District of Virginia. That ruling invalidated the two indictments, both of which she sought and signed by herself.
Halligan was appointed by then-Attorney General Pam Bondi after Erik Siebert, the prosecutor who had been leading the office, resigned amid pressure to secure an indictment against Comey and James.
Siebert had also been appointed and was serving in the role without Senate confirmation. Federal law allows U.S. Attorneys to serve for a period of 120 days without Senate confirmation. Currie, however, found that law does not allow successive interim appointments.
The government argues Halligan was appointed lawfully and that she should be reinstated and the indictments should be restored.
Lawyers for Comey and James have both urged the appellate court to uphold Currie’s ruling, concurring that Halligan was unlawfully appointed and dismissal of their cases was the proper solution.
“The Supreme Court has repeatedly held that actions taken by someone who lacks a valid appointment are void,” lawyers for Comey wrote. “And because no properly appointed Executive Branch official sought and obtained the purported indictment in this case, that indictment is equally void.”
“The problem is that when Ms. Halligan presented this case to the grand jury and signed the indictment — entirely on her own — she was not a government prosecutor,” lawyers for James wrote. “Her only purported appointment, which was unauthorized and unconstitutional, conferred no authority to litigate on behalf of the United States.”
“The implications of a contrary conclusion are extraordinary. It would mean the Government could send any private citizen off the street — attorney or not — into the grand jury room to secure an indictment so long as the Attorney General gives her approval after the fact,” Currie wrote in the ruling dismissing the case against Comey. “That cannot be the law.”
Halligan secured an indictment charging Comey with lying to Congress and obstructing a congressional proceeding stemming from testimony he gave before the Senate Judiciary Committee in 2020.
The indictment came last September, just days after Halligan assumed the office and Trump appeared to publicly pressure Bondi to bring charges against his perceived political foes.
Halligan indicted Letitia James just two weeks later, charging the New York Attorney General with bank fraud and making false statements to a financial institution in connection to mortgage documents for a property she purchased in Virginia.
Both Comey and James pleaded not guilty to the charges.
After their indictments were dismissed in November, the Justice Department tried – and failed – to indict James two more times using different prosecutors.
The DOJ has apparently not tried to revive the lying to Congress charges against Comey but a U.S. Attorney’s Office in North Carolina brought new charges against Comey in April. That indictment alleges Comey threatened President Trump’s life with a May 2025 Instagram post of seashells arranged to spell out ‘86 47.’ Comey is set to enter a plea later this month, and has asked a federal judge to dismiss those charges, claiming the DOJ had engaged in vindictive and selective prosecution.
Halligan left the Justice Department in January shortly after she was reprimanded by a federal judge in Virginia for continuing to refer to herself as the U.S. Attorney on court filings despite the ruling she had been unlawfully appointed.
She is one of several Trump-picked U.S. Attorneys to be declared unlawfully appointed, including acting top prosecutors in New Jersey, California, Nevada, and New York. Three of those prosecutors have appealed those disqualification rulings, and appeals courts have affirmed those findings.
But those four cases are different from Halligan’s. The Justice Department used a workaround, naming the Interim U.S. Attorneys in those offices the “first assistant” to allow them to effectively continue to lead to office after their terms expired.
The DOJ never used this strategy with Halligan, so the Fourth Circuit will weigh a different question: whether the Attorney General can legally appoint a new interim U.S. Attorney without Senate confirmation once a prior interim appointee’s clock has run out.
The Trump administration has signaled it is not ready to let go of what the courts have deemed unlawful appointments, which means regardless of the appellate court’s ruling, this case — or at least this issue — seems likely to be headed for the Supreme Court.
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