As former FBI Director James Comey prepares for trial in January over allegations of lying to Congress, his legal team is gearing up for a strategic counterattack against the prosecution led by President Donald Trump’s appointed interim US Attorney, Lindsey Halligan. In a court hearing held on Wednesday, Comey’s defense emphasized their intention to challenge Halligan’s authority as the US Attorney for the Eastern District of Virginia, a critical part of their plan to seek dismissal of the charges against him.
Comey’s team plans to contest Halligan's legitimacy as the interim US Attorney, arguing that her appointment violates legal standards. Their argument is rooted in the fact that Halligan may have exceeded the 120-day limit for interim appointments without Senate confirmation. Moreover, they assert that Halligan does not meet the criteria for exceptions under the law, as she has neither held a Senate-confirmed position nor worked in the Justice Department for a minimum of 90 days. Prior to her appointment, Halligan was serving in the White House and had no prior experience as a prosecutor.
The Justice Department will have a chance to defend Halligan’s appointment in court in early November, amid growing scrutiny of Trump’s use of interim US Attorneys lacking Senate confirmation. Attorney General Pam Bondi praised Halligan’s work following the indictment, emphasizing the Department of Justice’s commitment to accountability and the rule of law. “This was a big week at the Department of Justice. Our EDVA US Attorney Lindsey Halligan did an outstanding job,” Bondi tweeted, signaling the administration's determination to uphold their legal actions.
Legal analysts are weighing in on the situation, with conservative commentator Ed Whelan expressing skepticism about Halligan’s authority. In a recent article for the National Review, Whelan argued that Halligan’s appointment as US Attorney may not be legally valid, stating, “If her appointment is invalid, so is her indictment of Comey.” This raises significant questions about the legitimacy of Halligan's role and, by extension, the charges brought against Comey.
Challenges to the authority of Trump-appointed interim US Attorneys have become increasingly common. This year alone, attempts have been made to contest cases led by these appointed prosecutors in jurisdictions such as Los Angeles, Nevada, and New Jersey. Legal precedents have shown some success, with federal judges ruling against the Department of Justice for violating the Federal Vacancies Reform Act in naming acting US attorneys in both New Jersey and Nevada.
The circumstances surrounding Comey’s indictment are both unique and reminiscent of previous cases. Legal experts note that Halligan’s appointment may be legally questionable, particularly given the timing of her predecessor’s resignation and the rapid succession of appointments. Comey’s team argues that Halligan’s involvement in presenting evidence to the grand jury complicates the case, as the standards for dismissing an indictment are high.
The outcome of Comey’s legal challenge against Halligan could set a significant precedent for future cases involving interim US Attorneys. As seen in Comey’s case, defendants are increasingly asserting that the lack of Senate-confirmed attorneys undermines the legitimacy of their prosecutions. This situation is further complicated by other ongoing challenges across various jurisdictions, including a notable case in California where defendants are contesting the authority of US Attorney Bilal “Bill” Essayli.
As the legal landscape surrounding interim US Attorneys continues to evolve, the ramifications of Comey’s trial could resonate throughout the judicial system, impacting how future prosecutions are handled under similar circumstances. The challenge to Halligan’s authority represents a pivotal moment not just for Comey, but for the broader context of legal proceedings involving politically appointed prosecutors.
