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New updates in the Comey and James cases. Both indictments dismissed because Lindsey Halligan was not lawfully appointed as United States Attorney for the Eastern District of Virginia and so all her actions as such are void and without effect. Comey and James opinions. Though the two are substantially identical, having both been authored by the same judge. These dismissals are without prejudice meaning the government can try and secure further indictments. Although, in Comey's case this faces some additional hurdles since the statute of limitations for his offense expired several days after the first indictment against him was secured.
Note that a similar dispute is playing out in New Jersey with respect to the appointment of Alina Habba as United States Attorney for the District of New Jersey and in Nevada with respect to Sigal Chattah's appointment as United States Attorney for the District of Nevada. These cases are a little more complicated than Halligan's due to implications of the Federal Vacancies Reform Act but they arose due to circumstances like what Halligan is facing now.
At the heart of these disputes is 28 USC 546 which provides:
The dispute is principally about whether the Attorney General is permitted to make successive 120-day appointments or whether the Attorney General gets a single 120-day appointment and then when that expires the District Court makes the appointment as to who shall be United States Attorney. In Halligan's case Erik Siebert had already been appointed for 120 days earlier this year and was appointed by the district court upon expiration of that appointment. He then resigned under pressure to prosecute James and Comey, whereupon Bondi purported to appoint Halligan under 28 USC 546. Naturally, the court finds that Attorney General Bondi has had her 120 day appointment and so authority to appoint a new USA for EDVA lies with the district court.
A similar disqualification happened in the central district for California, bringing the total to 4.
Team R has a majority in the senate. They should be running every single US Attorney through confirmation instead of stepping on rakes with this fighting over acting/interim US Attorneys. I understand the admin's "just do things" approach, but getting hung up on procedural stuff like this is amateur hour.
At least one such GOP Senator has said he will not vote to bypass the blue-slip process that has been custom for a century or so.
Even the 60-vote Obama Senate respected it, rather than allowing Obama to put a Keith Ellison type as USA in Texas.
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This is all political. Competence has nothing to do with it. There is no threshold at which procedural pretexts stop being invented. It’s as if you said, “Muhammad Ali should be fighting, not getting punched. Amateur hour!”
Getting US Attorneys confirmed by the Senate is presidentin' 101. This isn't some new, dazzling pretext--as Nybbler points out, this problem even hit the Jack Smith prosecutions against Trump.
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"why are the people who perpetually go out of their way to step on rakes, stepping on all these rakes??? I voted for President 'i love stepping on rakes to own the libs' so he could get shit done, not step on rakes!"
Elect clowns, expect a circus
Or in this case, elect a reality TV star, expect amusing antics
This is like a form of gaslighting, where the actions of Trump’s enemies are reconfigured as Trump’s fault. No, these things don’t happen haphazardly, people worked hard to make them happen.
How is failing to confirm someone such that they have the legal authority to prosecute people when you control ALL THREE branches of government not your fault?
How is everyone in the DA's office deciding they would rather literally get fired than sign off on it the fault of "Trump's enemies"? Do you think the entire DA office is staffed with Democrat sleeper agents?
From other comments in this thread:
"Wahhh it's the Dems fault"
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Literally every administration has to contend with the opposing party making it difficult to enact their agenda. Trump has been gifted with a majority of all three branches greater than most administrations ever get. And Republicans have opted for a line where, rather than the legislative branch approving things, the executive simply creates its own mandates while the legislative passively allows him to.
What you are describing is the inadequacy of Republicans in Congress, which is the exact failure of leadership that created the opportunity for Trump’s election in the first place.
Yes, but that's still Trump's problem. Them not doing their job does not grant Trump authority to do it for them. Which is why a big part of every President's job is to get enough of Congress aligned with him, or vice versa. Trump is trying to skip that step and do everything through the executive, which results in a circus in the courts.
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The exact mirroring is eerie, though. Some of Jack Smith's cases against Trump got dismissed because his appointment was considered unlawful by the District Judge (and Clarence Thomas).
It did ultimately lead to the clusterfuck that's happening now, though. If Bondi could have appointed a special counsel to investigate Trump's enemies, she likely would have done so. But because of the Smith decision, she had to push the interim appointments laws beyond where the court was willing to take them and throw the district offices into disarray as a consequence. There is effectively no one in charge of four offices at this point, though I can imagine that the career supervisors there will keep things running in the meantime, at least as far as routine matters are concerned.
Aren't courts supposed to appoint US attorneys if the AG's choices can't secure Senate confirmation?
There is a real question about separation of powers where the court appoints an executive officer.
There's a real question about separation of powers if a President tries to appoint principal officers without the consent of the Senate.
Or if there's no one to actually run the US Attorney's office.
There's no way around the dysfunction. Congress tried to craft a compromise (muddle) solution.
https://reason.com/volokh/2025/07/26/appointment-of-interim-u-s-attorneys/
I don't buy that argument. The statutory text makes clear that after the 120 day term expires (c2), then (d) the district court appoints until the vacancy is filled. What would the point of an expiration be if the AG just gets to repeatedly re-fill it? The entire (c)(2) provision would be surplussage.
That said, maybe the Supreme Court looks at 28USC§546 and decides the way Prof Calabresi argues here. I just don't see it.
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In theory, yes. In theory, there's also someone already in the office who would automatically become Acting US Attorney in the event of a vacancy without an appointment. In practice, both of these are the same person—a career prosecutor who anticipates outlasting the current administration and would prefer to prosecute boring criminal cases rather than participate in Trump's revenge tour. So what happens is the Administration appeals the court ruling and fires whoever the court appoints, or tries to use some backdoor shenanigans to appoint their preferred candidate to a position where she'd automatically take over as US Attorney upon her own disqualification, creating confusing arguments where one holds multiple titles at once. At least this is how it's playing out in New Jersey. I'd offer a more detailed explanation but I'm not entirely sure I understand Pam Bondi's reasoning so I'll hold off.
The upshot here, though, is that the Trump Administration is going to continue to insist that Halligan is the US Attorney for the EDV, despite a court ruling saying she isn't. Imagine if you got an email from your company saying that your boss was no longer employed there, but he continued to show up and was assigning your team work that would cost the company a lot of money. When you email top leadership they tell you he doesn't work there anymore, but when you email his immediate supervisor you're told that he does and just continue the way things have always been. How much work do you think gets done in that situation? How long can the company continue to operate amid the uncertainty? How efficient will any work be? Now assume that this guy is also entirely unqualified for the job and was hired for the position because he was his boss's college roommate and he occasionally makes bizarre decisions that no one in the company can justify. You have absolutely no idea what's going on. What do you think morale is like? This is basically what's going on in New Jersey right now, where the entire office isn't doing anything because nobody knows who has the authority to do anything.
Getting an email from some judge saying that your boss is no longer employed at your company would be quite unusual though; "your company" in this case is the executive branch (c'est Trump!), no?
Within Rov's analogy, "your company" is the US gov as a whole (with Trump being the "immediate supervisor").
Companies that are structured as distinct and separate branches with no overall leader would be... quite unusual. I can't think of any, and if I could I would think it would be extremely unusual for a minor minion of one of the branches to be able to overrule the leader of a different "coequal" one. (and @pusher_robot, I'm pretty sure the DoJ already has their own HR?)
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A better analogy then would be that the SVP of your division says your boss is still employed, but a SVP of a different division which contains HR says he's not
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Could you please explain this?
I think the OP does a pretty good job of explaining Trump's interpretation of the law and why the court didn't buy it. As for the second part, there are four US Attorney's offices operating without a US Attorney for the time being. While the district courts can appoint a US Attorney, I don't know how long this will take, and I don't know what's going to happen if they appoint someone the administration doesn't approve of. Right now it's currently a matter of dispute who is, in fact, the US Attorney, if anyone even holds the position at all, and Federal prosecutions there have accordingly ground to a halt.
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Judge Cannon ruled that Jack Smith had no statutory power to bring the classified documents case. Thus, Bondi couldn’t just spawn a Special Counsel to manage the lawsuits Trump wanted. She had to slot them into an existing office.
In this case, Siebert was the lawfully appointed U.S. Attorney for Virginia. But he wouldn’t sign the indictment. Bondi fired and replaced him with Halligan, who did. Since that skipped the confirmation process, though, it ran into the same problem which got Smith.
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Easier said than done. I can't speak for the other three, but Lindsey Halligan would not make it through Senate confirmation. Her Wikipedia bio says:
This is a bit misleading for someone not familiar with the legal industry. Cole, Scott, & Kissane is what's known as a "defense mill". She did not represent insurance companies directly in coverage cases or bad faith cases, etc., she represented them as carriers covering other defendants. So if you get into an accident that's your fault and the person you hit isn't happy with what the insurance company is offering they sue you, your insurance company pays for your representation and pays the settlement. While they're the ones paying for everything and (mostly) calling the shots, they aren't the named defendant; you are. These places are known for low pay and high billing requirements, and that she made partner after five years isn't surprising because most attorneys will jump ship as soon as they get a better offer. And being partner doesn't mean that you can bring in business like it does at most firms, just that you get to bill at partner rates which are ten bucks an hour more than associate rates. This is mostly just to compensate for a lower billable requirement due to increased administrative work.
After nearly a decade of doing that, during which time she never once took a case to trial, she met Trump and he hired her as one of his personal attorneys in the classified documents case, where she basically did doc review. I don't want to denigrate what she did here (there's a kind of do review that's bottom of the barrel in the legal profession, but this isn't that), because reviewing documents and analyzing them is a core part of legal work. But it hardly qualifies one to be United States Attorney. Most of these people are career prosecutors with significant trial experience. Halligan is about as qualified to be US Attorney as I am, and I'm not qualified at all. There are people associated with this board who are more qualified by virtue of their having worked as criminal defense attorneys for some amount of time. The only real "qualification" she had was that she was willing to sign an indictment that literally no other attorney in the office was willing to sign.
Amateur hour is the fact that these indictments even happened. The Comey one was already on incredibly thin ice anyway after Halligan failed to read the corrected version of the indictment to the grand jury before they voted on it. Or that the James indictment, which didn't have a lot of meat on the bone to begin with, somehow failed to make the best argument. Or that literally everyone in the US Attorney's office for the Eastern District of Virginia, including Trump's named interim US Attorney, came to the conclusion that unemployment was preferable to being involved in these prosecutions. Given Trump's vindictiveness, it's a miracle he didn't order Halligan to fire the entire staff and just not have any prosecutions in the Eastern District for a while. If there's one silver lining to the corruption it's that it's balanced by a heavy dose of incompetence.
To be fair, that is a moderately impressive achievement (unless she was handing the trial work off to a trial specialist). That type of law firm avoids trials like the plague.
The Comey indictment paperwork screwup is one of the all-time great amateur hour screwups and the Lowering the Bar and/or Above the Law accounts of it are going to be coffee/keyboard risks. If Trump were more personally involved I would say it is an example of his scofflaw attitude and calculated contempt for procedural regularity and cast aspersions that he was trying to lose on a technicality deliberately in order to avoid losing on the merits, but in this case I think it is just that Halligan is incompetent and either she didn't bother to find a competent junior career AUSA to help her with the paperwork or the whole thing is so outrageous to the culture of career prosecutors that she couldn't.
The lawyer who was selected for hotness has a fool for a client.
Lawyers are like houses - if you judge by the usual criteria, you pay through the nose and get one no better than anyone else’s. So you need a find a criterion which is meaningful to you :P
What's the lawyer version of the worst house on the best street you can afford?
A paralegal or wet-behind-the-ears junior associate writing under a Biglaw letterhead.
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The worst lawyer from a Big Four legal company, naturally.
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