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Notes -
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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