It Turns Out Lindsey Halligan Was a Fake Prosecutor All Along

Mark Joseph Stern / Slate

Can the president circumvent Congress and the judiciary to install partisan loyalists as prosecutors so they can charge his political adversaries for crimes they did not commit? On Monday, a court held that he cannot. The decision, by U.S. District Judge Cameron McGowan Currie, rejected President Donald Trump’s attempt to appoint Lindsey Halligan, a personal lawyer, as interim U.S. attorney in Virginia, condemning the scheme as a patently unlawful evasion of federal statute and the Constitution. Trump and his attorney general, Pam Bondi, picked the utterly unqualified Halligan to indict former FBI Director James Comey and New York Attorney General Letitia James—something legitimate prosecutors were unwilling to do. But Halligan never lawfully exercised the powers of her alleged office. So Currie dismissed both indictments in their entirety.

This fight is not over. Currie’s reading of the relevant law is compelling but contested; the Trump administration may well appeal. And her decision leaves open the possibility that a validly appointed U.S. attorney could indict Comey and James in the future. As a practical matter, though, a redo seems quite unlikely. And that reality underscores the core message of the ruling: The president cannot so easily anoint corrupted prosecutors to wield their vast authority against perceived foes of the regime.

The Halligan affair began for a simple reason. Trump wanted indictments against Comey and James, and no reasonable prosecutor would bring them. His Justice Department sought to bring the charges in the Eastern District of Virginia, which is where their alleged wrongdoing would have occurred. But the interim U.S. attorney leading that office, Erik Siebert, resisted the administration’s (obviously political) push. So Trump and Bondi pushed out Siebert and attempted to replace him with Halligan, a former insurance lawyer who represented the president during his criminal trials. Halligan had no prosecutorial experience whatsoever and fumbled basic aspects of the job. Still, she quickly secured indictments against Comey and James—the former for alleged perjury; the latter for alleged mortgage fraud. (Both charges appear to be bogus.)

Comey promptly retorted with an existential attack on Halligan: His lawyers argued that she had no power to charge him or James or anyone else because she had been invalidly appointed to the office. Their argument hinged on a federal statute that governs who may temporarily serve as U.S. attorney when there’s no Senate-confirmed official in the role. Under that law, the attorney general may appoint an interim U.S. attorney, but only for 120 days. Once that window closes, the statute shifts the appointment power to the federal district court, which may name a replacement who serves “until the vacancy is filled.”

That’s exactly what happened here. The attorney general appointed Siebert for the initial 120-day period, and when his term expired, the district court lawfully reappointed him. At the time that Trump ousted Siebert, though, the statutory clock had long since run out. And that raised the central question of Comey’s challenge: Could Trump and Bondi really install Halligan—someone neither confirmed by the Senate nor selected by the court—after the statute had stripped her of the power to do so?

Currie held that they could not. Her decision flows ineluctably from the text, purpose, and history of the statute. First, text: The statute allows the AG to appoint a single U.S. attorney for just 120 days. As Currie writes, when the clock runs out, the statute “provides a single option for how subsequent interim appointments may be made”: by the district court, “and only the district court.” By vesting authority over these appointments in the judiciary alone, “Congress did not intend for the attorney general to retain appointment power beyond 120 days.”

That interpretation directly serves the statute’s purpose: to limit the executive branch’s discretion over temporary U.S. attorneys in the absence of Senate confirmation. Under the Constitution’s appointments clause, U.S. attorneys are “principal officers” who must generally receive the consent of the Senate to assume office. Interim officers are meant to be the exception; the statute reinforces this principle by enforcing a 120-day limit on the administration’s choice. Yet the Trump administration asserts that the attorney general can name an infinite series of interim attorneys, or reappoint a single interim attorney every 120 days. This theory, Currie writes, would “allow the Executive to evade the Senate confirmation process indefinitely by stacking successive 120-day appointments.” It would defeat the purpose of the statute, not to mention the constitutional rule that principal officers cannot exercise their power without the checks that Congress built into the appointments process.

Finally, Currie persuasively demonstrates that Congress intended precisely this outcome when enacting the relevant statute. Multiple lawmakers said so on the floor, including its primary sponsor, Sen. Dianne Feinstein. This debate is especially instructive because Congress actually altered the law in 2006 to permit what the Trump administration seeks—then almost immediately changed it back, acknowledging that the revision had been a mistake. So we have an unrebutted record of the legislative branch enshrining Currie’s view into law and rejecting the Trump administration’s interpretation outright. (In case all of that weren’t enough, she points out that Justice Samuel Alito, while serving in Ronald Reagan’s Justice Department, took the same view of the law’s text in 1986.)

Having concluded that only the district court may name the interim U.S. attorney after the 120-day period is up, Currie had no choice but to disqualify Halligan from the office she purports to hold. Further, the judge threw out the indictments against Comey and James. But she did so “without prejudice,” holding that Supreme Court precedent required it. That means prosecutors can, in theory, bring new indictments against Comey and James. As a practical matter, of course, that may be difficult, since anyone who will be named by a federal court or approved by the Senate may have too much integrity to pursue such baseless charges.

What about the statute of limitations? That might sound like a fatal problem, since the clock in Comey’s case expired just after Halligan filed her defective indictment. Currie does address the issue, but her analysis has been widely misunderstood. The judge held that Bondi could not ratify Halligan’s invalid indictment after the limitations period had closed. She did not hold that prosecutors are barred from trying again. To the contrary, Currie notes that federal law provides a six-month grace period when prosecutors file a flawed indictment just before the statute runs: Once that indictment is dismissed, they have six additional months to return a valid one, even though the ordinary deadline has passed. If Trump manages to ram through another U.S. attorney willing to bring these charges, they will almost certainly use this provision to try to resurrect the Comey case.

Currie’s interpretation of the law here probably won’t be the final word. Another court facing a near-identical situation—the appointment of Alina Habba in New Jersey—reached the same conclusion. Given the administration’s affinity for this backdoor scheme, though, it may take this dispute all the way to the Supreme Court in pursuit of a rubber stamp. The Republican-appointed justices have been sticklers for the appointments clause lately, though they tend to bend the rules for Trump when he asks nicely. If they want to give the separation of powers any meaning, they must affirm that Congress did not grant the president limitless authority to convert federal prosecutors into instruments of personal retribution, one hack at a time.