Former FBI Director James Comey and New York Attorney General Letitia James will ask a federal judge this Thursday to drop criminal charges against them, arguing that the federal prosecutor appointed by President Donald Trump, who obtained the indictments, was illegally appointed.
The hearing in federal court in Alexandria, Virginia, will mark the first time a judge will consider one of several attempts James and Comey made to dismiss the allegations before the trials.
The arguments center on whether Lindsey Halligan, Trump’s former personal attorney, was illegally appointed as acting U.S. attorney for the Eastern District of Virginia. If it is determined that Halligan was illegally appointed, the charges against Comey and James could be invalidated, since Halligan was the only federal prosecutor to present evidence to the grand juries in both cases.
Comey pleaded not guilty to charges of false statements and obstruction of Congress, while James pleaded not guilty to charges of bank fraud and lying to a financial institution. Both were charged by Halligan’s office shortly after Trump publicly asked Attorney General Pam Bondi to prosecute them.
Bondi appointed Halligan at Trump’s request in September, after his predecessor, Erik Siebert, was forced to resign after expressing concern about a lack of evidence to support criminal charges against Comey and James, two prominent Trump critics who oversaw investigations against him.
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Comey and James will argue that the appointment of the federal prosecutor violates the term limit
Lawyers for Comey and James will argue that Halligan’s appointment violates a federal law that they say limits the appointment of an acting U.S. attorney to a single 120-day term. They added that repeated interim appointments would bypass the Senate confirmation process and allow a prosecutor to serve indefinitely.
Siebert had previously been appointed by Bondi for 120 days and subsequently by the United States District Court for the Eastern District of Virginia, since the Senate had not yet confirmed him to the position.
Thursday’s arguments will be heard by Cameron McGowan Currie, a South Carolina-based federal judge appointed by former Democratic President Bill Clinton, who was assigned to decide the case because of the role federal judges in Virginia played in Siebert’s appointment.
The Justice Department plans to argue that Halligan’s appointment was legal, stating that nothing in the law “explicitly or implicitly prevents the Attorney General from making additional appointments.”
In an attempt to reinforce her stance, Bondi also belatedly, in late October, granted Halligan a second title of “Special Prosecutor” and declared that she is authorized to oversee both court proceedings.
However, outside legal experts have noted that the Justice Department’s unusual moves to name Halligan could hurt the cases.
Three federal judges in other cases have already ruled against the Justice Department on this matter, determining that Bondi illegally appointed federal prosecutors in New Jersey, Nevada and Los Angeles.
Furthermore, a Justice Department memo written in 1986 by Samuel Alito, who is now one of the conservative justices on the Supreme Court, interprets the law the same way Comey and James do.
With information from Reuters
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