Comey’s challenge of Lindsey Halligan is the latest bid to derail Trump’s top prosecutors
By Katelyn Polantz, Kara Scannell, CNN
(CNN) — Before FBI Director James Comey heads to trial in January over charges of lying to Congress, his team plans to put the prosecutors — and specifically President Donald Trump’s handpicked interim US Attorney Lindsey Halligan — on the defensive.
Comey’s strategy, as outlined in court on Wednesday, will focus on attacking Halligan’s authority as the US Attorney of the Eastern District of Virginia as part of efforts to convince the court to dismiss the charges against him.
The coming challenge to remove Halligan from the case is just one in a wave of recent criminal defense lawyers around the country calling into question Trump’s use of top prosecutors who haven’t been confirmed by the Senate. Some of those challenges have been successful.
Halligan may make the Comey case especially vulnerable, in that she was the only prosecutor to take the indictment through a grand jury, and was sworn in by the administration to lead her office just days before.
A challenge for Halligan
Comey’s defense attorneys are likely to argue that Halligan can’t serve as interim US attorney because that position hit its 120 day limit. Also, they may say Halligan’s new role does not appear to fit two exceptions for appointments to such vacancies under the law: She is not Senate confirmed nor is she someone who has been employed in Justice Department for at least 90 days.
Halligan was serving in the White House and has never been a prosecutor.
The Justice Department will have an opportunity to argue in court to defend Halligan in early November.
“This was a big week at the Department of Justice. Our EDVA US Attorney Lindsey Halligan did an outstanding job,” Attorney General Pam Bondi tweeted after securing Comey’s indictment. “We will continue to fight for accountability, fairness, and the rule of law because the American people deserve nothing less.”
In the courtroom Wednesday, when Comey’s attorney Patrick Fitzgerald said he would challenge her authority, Halligan watched him intensely and unflinching, nodding vigorously when the judge spoke about the motion.
Ed Whelan, a conservative legal commenter, has been writing in the National Review about why he thinks Halligan, who signed off on Comey’s indictment, doesn’t have prosecutorial authority.
“It seems highly doubtful that Lindsey Halligan has been validly appointed as United States Attorney in the Eastern District of Virginia,” Whelan wrote in the National Review recently. “If her appointment is invalid, so is her indictment of Comey.”
Whelan argues that a prior top federal prosecutor for the Eastern District of Virginia has essentially timed out in the job, making Halligan unable to serve without the federal court’s or the Senate’s explicit blessing.
He says Halligan also can’t be brought into the prosecutors’ office because she hadn’t been serving in another Senate-confirmed or Justice Department role.
A judge from another circuit will need to be appointed to hear the motion from Comey, the judge presiding over the case, Michael Nachmanoff, said Wednesday, as was done in two other jurisdictions where criminal defendants have won similar motions in the current Trump administration.
Prior challenges against Trump’s interim US Attorneys
This year, challengers have tried to stop cases brought by Trump’s US Attorney picks in Los Angeles, Nevada and New Jersey, by challenging those prosecutors’ authority. The playbook was also used successfully by Trump’s criminal defense team in two previous cases against him.
Two federal judges found DOJ violated the Federal Vacancies Reform Act when naming acting US attorneys in the districts of New Jersey and Nevada.
In both instances, Trump’s choices for US attorney, Alina Habba in New Jersey, and Sigal Chattah in Nevada, were appointed as interim US attorneys who, under the law, can serve for 120 days. If a permanent US attorney is not Senate confirmed at the end of 120 days, then judges can appoint an interim US attorney until a permanent choice is confirmed.
Just before their 120-day terms expired, Habba and Chattah resigned their positions, named by Attorney General Pam Bondi as special attorneys, placed in the first assistant US attorney position, and then delegated the authorities of the US attorney in their districts.
In both legal challenges, the judges found the appointments unlawful.
Judge Matthew Brann, in Habba’s case, said the legislative history “clearly contemplates that the first assistant provision only functions in its automatic form at the moment the vacancy occurs, and does not repeat, and suggests that the President has no role in that process.”
Both judges also rejected another argument that as special attorneys Habba and Chattah can serve through general delegated authority from the US attorney general.
In both New Jersey and Nevada, the judges disqualified Habba and Chattah from working on the two cases, but they did not throw out the underlying indictments for several reasons, including that neither Habba or Chattah were directly involved in them.
Comey’s defense attorneys are likely to argue that Halligan can’t serve as interim US attorney because that position hit its 120-day limit.
The uniqueness of Comey’s indictment
The facts in the investigation of Comey and appointment of Halligan are similar in some ways and different in others.
“If Halligan was named as an interim US attorney, Comey has an argument that she is not legally serving because the law does not permit successive appointments of interim US attorneys by the attorney general,” said Nina Mendelson, professor of law at University of Michigan.
Halligan’s predecessor, Erik Siebert, was named interim US attorney in January, and the judges in the district selected him as acting US attorney in May. Last month, Siebert resigned after Trump threatened to fire him over his refusal to move ahead with a criminal indictment against New York Attorney General Letitia James involving potential mortgage fraud. At the time, his first assistant stepped down from that position.
Trump then named Mary “Maggie” Cleary as interim US attorney and then replaced her two days later with Halligan, his former personal attorney and staff secretary at the White House.
One contrast to the other two court challenges is that, unlike Habba and Chattah, Halligan personally presented the evidence to the grand jury.
The bar is high for an indictment to be dismissed over an invalid signature. If the judge finds Halligan is serving unlawfully, whether the indictment is thrown out would likely turn on who, if anyone else, was involved and if the judge finds there was any misconduct that prejudiced Comey before the grand jury.
Since she secured the indictment of Comey two weeks ago, two lower-level line attorneys are now taking part in the prosecution and appeared in court Wednesday.
The judge in Habba’s case said that to dismiss an indictment, “a defendant generally must show that some kind of misconduct prejudiced him with regard to the grand jury proceeding.”
Criminal defendants in the Central District of California who were charged in August also are also trying to have their case dismissed, arguing the US Attorney there, Bilal “Bill” Essayli has been in an interim job longer than what’s allowed by law, which is 120 days.
“Because Mr. Essayli’s 120-day clock expired on July 30, his actions since that date have been taken without lawful authority,” the defendants wrote in a recent filing.
The Justice Department argued there that the clock is longer, giving Essayli 300 days in the job.
A court hearing is set for next week on Essayli’s ability to oversee cases in the district.
Disqualifying the prosecutor was also Donald Trump’s side door out of facing criminal classified records mishandling charges in a Florida federal court last year, when a judge there ruled that the then-special counsel hadn’t been validly authorized by Congress.
A 2020 election conspiracy case in Georgia’s state court, similarly, was hobbled when Trump and his many codefendants successfully had District Attorney Fanni Willis removed from the proceeding. Georgia authorities still haven’t replaced Willis with a new prosecutor.
CNN’s Holmes Lybrand contributed to this report.
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