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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 lot of IMO naive discussion under this post. Lawfare is a rigged game and discussing bias political outcomes as if they were normal legal procedures is silly.
Trump: “2+2=4”
Judge: “Actually, 2+2=5. Case dismissed!”
Commentariat: “How could Trump screw up this badly? Why doesn’t Trump have competent lawyers? Does Trump hire too many bimbos? Why was his 2+2=4 case so weak?”
Etc etc
I don't know if you understand the full scope of what happened over the past couple weeks. The broad outline is this: Back in 2019, one of Comey's attorneys was investigated as part of another case that was closed in 2020. The Justice Department seized a bunch of evidence in this attorney's possession and had it stored on DVDs. The proper way to obtain this evidence would have been for Halligan to obtain a search warrant with the proper scope delineated and have the material reviewed by a court-appointed special master to remove anything that was privileged or attorney work product. Instead she just looked at all of it and used some of it as part of her case to the Grand Jury.
This is itself evidence of either incompetence or malevolence, but I'm not going to belabor the point or argue about it because these are honestly forgivable offenses, at least for someone who is wholly inexperienced in criminal law. Regardless, this was a problem for the prosecution, because if she presented any privileged information or attorney work product to the grand jury it would be grounds for dismissing the indictment, and the possibility that she even viewed such information herself would be grounds for removing her from the case (though I doubt the defense would ask for that). The defense requested that the court take the unusual step of releasing the grand jury information to them so that they could review it and determine if they had grounds for dismissal. A court granted that request, and while Halligan did not present anything privileged to the grand jury, what transpired was much worse.
The only witness who testified was an FBI agent who had no personal knowledge of what he was testifying to but had heard things from other agents. Hearsay testimony is allowed in grand jury proceedings, but it's inadmissible at trial, and it says a lot that she couldn't get the agents with first-hand knowledge to testify. The real shocker though was the ending phase, when she was giving the jurors instructions on how to proceed. She made the following two averments:
In response to a question from a juror about the facts of the case, she said something to the effect that if Comey had a satisfactory answer then he could testify at trial and the jury could choose to believe him or not. She implied that a jury could draw a negative inference from the defendant's failure to testify, but more importantly, she implied that such a question would shift the burden of proof to the defendant.
She told the grand jury that they could assume the prosecution would present more evidence at trial. In other words, you can base your decision to indict on theoretical evidence that we might have at the time of trial.
It's been fifteen years since I graduated from law school, and I've seen a lot of incredibly stupid shit in that time. While I can't say that this is necessarily worse than anything I've witnessed, I can confidently say that I haven't seen anyone do anything remotely this bad and not get fired immediately. It certainly presents a logical conundrum for people such as yourself, because there are only three possibilities here:
She's incompetent to the degree that she doesn't understand the most elementary concepts of the US criminal justice system.
Her case is so weak she felt the need to lie about the law to obtain an indictment. An indictment.
She's so morally bankrupt that she would intentionally lie to a grand jury regardless of the strength of her case to ensure the maximum possibility of obtaining an indictment.
And of course some combination of the three. What does not exist is this fantasy land where the case against Comey is strong, Halligan is a competent attorney who scrupulously adheres to the canons of ethics, and anyone who thinks otherwise is a crypto-Democrat trying to distract the country from how low prices are getting. In a world where Trump, Bondi, et al. were rational, they would, regardless of what they thought of the opinion, at least hedged their losses by accepting the decision and allowing the court to appoint a real US Attorney, at least while the case was under appeal. Based on my own knowledge of how they operate, I would expect them to do nothing.
But no, showing that their idiocy knows no bounds, they have somehow found an option that's even worse. After the decision disqualifying Halligan was handed down, attorneys were instructed to stop signing her name on court filings and to use the name of the First Assistant instead. That guidance lasted about an hour before it was superseded by new guidance that they were to continue to use Halligan's name. This is an administration that is so committed to law and order that they are willing to take legally dubious measures to deploy the National Guard to "Democrat cities" because of "out of control crime". Yet he is unusually willing to risk every ongoing Federal prosecution between Virginia Beach and Washington, DC. If I'm a defense attorney I'm licking my chops right now over the prospect that any motion I file while this circus continues will effectively be unopposed. If the Eastern District courts have any sense whatsoever they'll make it clear that any pleadings that come in with her name on them will be rejected, and maybe the administration will get the message. But I wouldn't bet on it.
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So…why do you think Trump’s the one saying “4”?
So United States attorneys work for the Executive Branch and are supposed to be selected by the AG.
Clause (d) looks like it's just there to let courts do something to keep the district courts functioning in the case of political paralysis.
If the legislature actually wanted to strip the executive of its ability to make temporary appointments then they would have at least used "shall appoint a United States attorney" instead of "may".
Also this text has existed since at least 1986 and Lindsey Halligan is the first one a court has attempted to remove. I'm fairly sure it's not the first time there's been a second temporary appointment.
Combine that with the fact that the Eastern Virginia legal establishment strongly wants to stop these prosecutions and I think it's likely that this judge is purposefully misinterpreting the law.
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On the "judges get to do what they want, actual justice gets to suck it" front and related to the thread you dislike below, a Hennepin County judge overturned a jury's verdict in one of the Somali fraud cases. The judge doesn't seem to have released any information beyond the overturn and acquittal, here's news agency commentary:
To my non-lawyery ear this sounds a lot like "vibes" and the jury should've known better nudge nudge wink wink.
Oh, that sounds pretty spicy.
I was able to get at the judge’s order by following these instructions. It appears the prosecution did a great job convicting the defendant’s brother. That might be good enough for some people, but it’s apparently not sufficient under MN law.
As I understand it, though, because the case can be appealed, the state gets another shot at proving it.
annnnnnnnd Rov_Scam beat me to it.
While this is one of the few times a state can appeal an acquittal, appeals primarily review mistakes of law. The state does not get a do-over unless they can successfully persuade the appeals court about that first. I think Rov_Scam is being far too deferential to the judge, here -- there's a lot of judicial 'I could imagine alternative explanations' in that order -- but the standard to retry is so high I would be very surprised if they get a second go.
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Except a 55 page order that outlines the facts of the case in excruciating detail, accompanied by the relevant analysis. There's no way to link to the order, but you can find it by searching https://publicaccess.courts.state.mn.us/ for Case No. 27-CR-24-13734. The gist of the opinion is that the prosecution did a very good job of proving that the defendant's brother was committing fraud through a home-health entity that the defendant owned. The brother was managing the business and hired a consultant who produced documents that were submitted to Medicaid showing inflated hours for legitimate clients as well as hours billed to fictitious clients. The issue was that none of the witnesses with direct knowledge of the fraud were able to implicate the defendant. Most had never met him at all, and the few who had testified that they only met him a couple times and just made small talk. There wasn't even any evidence that he had any direct involvement in the management of the company.
The circumstances that the jury convicted on were that he was the chartered owner of the company, that he received substantial cash payments from the company, and was in possession of a company debit card. There were also a few checks with his purported signature, though the signatures are inconsistent and he was out of town on the dates that some of them were signed in Minneapolis, so it's an open question which ones are genuine. His signature also appears on the padded Medicaid submissions, but the consultant testified that she forged his signature at his brother's direction. I quote the standard in a comment below, but the gist of it is that if a case relies entirely on circumstantial evidence, then the defendant's guilt has to be the only reasonable conclusion inferred from the circumstances. Since you can also reasonably infer that the defendant was an absentee owner who simply collected money from the business and didn't participate in its day to day affairs and neither knew of nor participated in the fraud his brother was perpetrating. The prosecution, therefore, didn't reach their burden and the conviction must be set aside. You may disagree with the reasoning, but its difficult to say that she let this guy go just because she felt sorry for Somalis.
For a link, see this file
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I'm quite curious how this will shake out on appeal. In my state, setting aside the jury verdict after a finding of guilt is a one-way ticket to reversal. The judge can only act as the "13th juror" in the most rare of circumstances. It can't just be that the State's case was weak or relied on circumstantial evidence or "didn't rule out other reasonable inferences," but rather the evidence was non-existent.
Minnesota uses a two-step analysis laid out in State v. Silvernail:
I suspect "rational" in that standard is doing some heavy lifting, because otherwise the second step reads "not only must the State prove guilt beyond a reasonable doubt, but must disprove every other theory as well (aside from aliens or Bigfoot)." That's a big hurdle depending on how strict "rational" is.
I also wonder, but don't care enough to research, how often that second step leads to vacating a conviction. All that quoted language sounds defense-friendly, but every case there (Silvernail, Palmer, Hurd, and Anderson) upheld the murder convictions at issue. It sounds particularly prone to vacating convictions in white collar crimes where a defendant claims they didn't know. Unless there are written declarations of "I know I am committing fraud by doing X," then saying "I didn't know, it was all confusing and overwhelming" could always be a rational hypothesis of the inferences.
That second part (disprove all other theories) is a common out less entrenched judges use quite often in minor cases (most judges in state courts get crappy assignments when they start, like in traffic misdemeanor rooms) so they can avoid being appealed following a bench trial. A real life example I know of goes like this: Cop pulls up to a scene where a car hit a traffic sign of some sort (i dont recall exactly). Man is drunkenly attempting to remove the sign from the front window. Cop has him do field sobriety tests, which he fails miserably. Guy is arrested and refuses to blow at the station. Not guilty, stated reason is that the state failed to prove that defendant actually drove the vehicle.
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Because in subsequent interviews Comey has constructively admitted to submitting false testimony on multiple occasions. He frames it as working within the system, a "we knew where the evidence was we just needed a Judge's blessing to go get it" sort of situation. But what it boils down to is that he knowingly submitted false statements and/or fruit-of-the-poisonous-tree to secure warrants.
Specifically, we now know that wire-tapping of Trump associates on suspicion of Russian Collusion was secured under false pretenses, and that Comey knew this to be the case when he testified otherwise in September of 2020.
That is absolutely true. It also has absolutely nothing whatsoever to do with whether or not the attorney that submitted his case to the grand jury for indictment was properly appointed.
People go absolutely bonkers on procedural rulings. It wasn't even dismissal with prejudice!
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This is the first thing which makes me, if not exactly sympathetic to Trump, then at least unsympathetic to Comey.
Criminal procedure exists for a reason. There are plenty of jobs in the world where you can do just fine by sometimes taking shortcuts instead of doing everything by the book. Criminal investigations is not one of them. If you find yourself lying to a judge so that they will bless you violating someones constitutional rights, or engaging in parallel construction, then you are the villain. If you can't do your job while keeping within the law, then at least be honest, quit your job, wear a batman mask and beat up suspects in the night, don't pretend to serve the law while breaking it.
Sure, Trump going after you is roughly orthogonal to you having acted in a criminal manner, and this very much does not scale to a systemic solution, but if your allegations are true then I would consider a conviction at least a happy accident, like a bolt of lightning striking a serial killer.
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Because I think Trump is right. James Comey lied before Congress and he knew Russiagate was a sham.
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