Judge skeptical of prosecutor's authority in Comey, James cases


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Lindsey Halligan speaks with a reporter outside the White House in August. A federal judge reportedly had doubts she is legally serving as head prosecutor in the cases of President Donald Trump's political opponents. (AP Photo/Jacquelyn Martin, File)

A federal judge appeared skeptical Thursday that the head federal prosecutor in the cases of President Donald Trump’s political opponents is legally in her position, The Washington Post has reported.

District Judge Cameron McGowan Currie, who is temporarily handling the cases, reportedly had doubts that U.S. Attorney General Pam Bondi legally appointed interim U.S. Attorney Lindsey Halligan to oversee Virginia’s eastern district. Halligan led the indictments of former FBI Director James Comey and New York Attorney General Letitia James, both of whom have had issues with the president.

Comey and James have argued that Bondi did not have the authority to appoint Halligan in September. Only the eastern Virginia district court was able to name a successor for Erik Siebert, who was interim attorney from January until this fall, the defendants said in filings last month, citing the same federal law.

“The official who signed the indictment—and from all indications the sole official who presented the case to the grand jury—was defectively appointed to her office as an interim U.S. Attorney,” Comey said in a motion to dismiss his indictment.

“Rather than conform to constitutional and statutory requirements for such appointments, ... her purported appointment violated the congressionally designed and constitutionally compelled means for the Attorney General to appoint an official as interim U.S. Attorney.”

James’s motion to dismiss had similar claims. Prosecutors rejected her and Comey’s allegations, though, explaining that the defendants were trying to “rewrite” the law, Section 546 of Title 28.

“Although Defendants frame their arguments in constitutional terms, all agree that U.S. Attorneys are inferior officers whose appointment the Constitution permits Congress to vest ‘by Law’ in a ‘Head of Department’ like the Attorney General," the prosecutors said in response. “All further agree that Congress, in 28 U.S.C. 546, did in fact vest the Attorney General with the power to appoint U.S. Attorneys for at least 120 days."

“The sole question is whether Section 546 authorized the Attorney General to appoint interim U.S. Attorney Lindsey Halligan in the circumstances here: where a previous interim U.S. Attorney vacated office after serving 120 days and being reappointed by the district court,” the prosecutors continued. “Section 546’s text supplies a straightforward answer: yes.”

The law states that, after an interim attorney's term expires, a district court can appoint someone to serve until the position is filled. Currie reportedly said she plans to make a decision on the matter within the next two weeks.

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