Trump DOJ's Bid To Revive Comey and James Cases Runs Into Appointment Questions at Appeals Court

The Department of Justice faced pointed questions at a federal appeals court on Tuesday as it sought to revive criminal cases against New York Attorney General Letitia James and former FBI Director James Comey. The dispute centres on whether Lindsey Halligan was lawfully appointed as interim US attorney when she obtained the indictments and presented the cases to grand juries.

Letitia James Case Centres on Halligan Appointment

The hearing followed the dismissal of James' prosecution after Senior US District Judge Cameron Currie concluded that Halligan had been unlawfully appointed. DOJ attorneys argued that Currie had administered what they called 'strong medicine' in response to what they characterised as an 'error in the title'.

DOJ attorney Henry Whitaker urged the US Court of Appeals for the Fourth Circuit to respect the grand juries' decisions and revive the fraud and false statement indictments against James and Comey. He also argued that Currie had erred in concluding that former US Attorney General Pam Bondi had unlawfully appointed Halligan as interim US attorney in the Eastern District of Virginia.

Attorneys for James and Comey countered that Halligan was little more than a private citizen when she was the only prosecutor to sign the indictments and present the cases to the grand jury. Their argument brought another appointment dispute involving the Trump administration into the hearing.

James Comey Case Draws Comparison With Jack Smith

The lawyers pointed to US District Judge Aileen Cannon's dismissal of the Mar-a-Lago case brought by former special counsel Jack Smith against Trump. In that ruling, Cannon described Smith as 'a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision'.

The comparison became a focus of questioning at the Fourth Circuit. Senior US Circuit Judge Henry F. Floyd asked Whitaker how the government could distinguish the Halligan situation from the appointment issue involving Smith.

'How would you then distinguish United States v. Trump when Judge Cannon found that Mr. Smith, whatever his name was, wasn't lawfully appointed? What happens in this case? How would you distinguish it if Ms. Halligan's not lawfully appointed?' Floyd asked.

Whitaker responded that different appointment authorities applied to Smith and Halligan. He said Halligan could have been appointed to conduct the prosecutions under 28 U.S.C. 542 and 543, authorities the United States did not invoke when defending Smith's appointment.

DOJ Argues Indictments Should Be Revived

The argument immediately drew another challenge from Chief US Circuit Judge Albert Diaz. 'To put it bluntly, would have, could have, should have. That didn't happen,' Diaz said.

The exchange underscored the competing positions before the appeals court. The DOJ argues that the appointment issue should not have resulted in dismissal of the indictments, while attorneys for James and Comey maintain that Halligan's authority was central because she signed the indictments and presented the cases to the grand jury.

The Fourth Circuit had not issued a ruling on the appeals following the 15 September hearing. The dispute centres on whether Halligan's appointment complied with federal law and, if it did not, what legal effect that should have on the indictments.

The issue turns on Halligan's authority when she acted as the prosecutor in the cases. Whitaker argued that other appointment authorities could have been used, while the lawyers representing James and Comey argued that Halligan lacked the lawful authority necessary to perform those functions.

For James and Comey, the distinction has direct implications for the prosecutions they face. The government is asking the appeals court to respect the grand juries' decisions and revive the indictments, while their lawyers are defending the dismissals.