Well, well, well if it isn’t the logical and natural consequences of this administration’s actions! After playing musical chairs with the Eastern District of Virginia’s U.S. Attorney’s Office to find someone — anyone — with a pulse and a JD willing to file frivolous criminal cases against former FBI Director James Comey and current NY Attorney General Letitia James, the Trump administration braintrust landed on insurance lawyer Lindsey Halligan. Fast forward to today, with Judge Cameron McGowan Currie tossing the prosecutions against both Comey and James without prejudice after deciding that Halligan’s attempt to squat in the office was long on vibes and short on “legal support.”
Judge Currie, the South Carolina senior judge brought in specifically to handle the disqualification motion declared “The Attorney General’s attempt to install Ms. Halligan as Interim U.S. Attorney for the Eastern District of Virginia was invalid,” noting that the 120-day limit on an interim U.S. Attorney appointment had lapsed before Halligan even got her crayon-engraved invitation. Attorney General Pam Bondi’s galaxy brained argument that the administration should be allowed to keep shuffling 120-day appointments indefinitely, ran aground with Judge Currie who pointed out that this would allow the administration “to evade the Senate confirmation process indefinitely by stacking successive 120-day appointments.”
…the Attorney General “could not have authorized” Ms. Halligan, who was not an attorney for the Government at the time, to present Ms. James’s indictment to the grand jury on October 9…. The implications of a contrary conclusion are extraordinary. It would mean the Government could send any private citizen off the street — attorney or not — into the grand jury room to secure an indictment so long as the Attorney General gives her approval after the fact. That cannot be the law.
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Halligan went one better than “attorney or not,” by arriving on the “job” as an insurance lawyer from Florida with zero prosecutorial experience. Though the “or not” might well have brought more acumen to the task, since Halligan’s primary accomplishment since she began cosplaying as a U.S. Attorney involved turning in a fake indictment and trying to weasel out of that. In the Comey case, a flustercuck from jump, this dismissal probably concludes the whole ill-conceived crusade, as the claims against his supposed false statements should be time-barred absent Pam Bondi securing a DeLorean and 1.21 gigawatts.
So until this DOJ figures out how to transfigure beachside numerology into a terror plot, Comey should be in the clear. If the DOJ understood that discretion is the better part of valor — or the virtue of not looking a gift horse in the mouth — or whatever your chosen folksy saw about prudence, they would take this off-ramp to drop the seemingly weak James case too.
Friends, they do not understand this.
To add a twist of irony to the proceedings, for the proposition that an illegal appointment demands tossing the case altogether, Judge Currie explicitly cited Judge Aileen Cannon’s notoriously goofy opinion killing the Trump classified documents case by declaring Special Counsel unlegal.
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In such a case, “the proper remedy is invalidation of the ultra vires action[s]” taken by the actor. United States v. Trump, 740 F. Supp. 3d 1245, 1302 (S.D. Fla. 2024).
The two situations differ significantly. Jack Smith was appointed under 28 U.S.C. § 515, which specifically authorizes the Attorney General to retain special attorneys to “conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.” The legality of Smith’s role is backed up by decades upon decades of precedent. Halligan, by contrast, was theoretically appointed an interim U.S. Attorney and 28 U.S.C. § 546 lays out a clear 120-day limit on that job. But putting the substance aside, if an appointment is illegal, the right remedy is tossing the case.
Choosing Trump’s literal get out of jail free card from Judge Cannon for this proposition was cheeky. And we approve.
Will Trump take the hint? My bet is no.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.