The Justice Department’s plans to appeal a ruling that an interim US attorney is unlawfully serving is likely to force the Supreme Court to weigh in on the Trump administration’s maneuvers to install loyalists as top prosecutors.
DOJ will quickly challenge Senior US District Judge Cameron McGowan Currie’s ruling Monday dismissing cases against former FBI Director
Halligan, an insurance lawyer with no prior prosecutorial experience, is the fourth of President Donald Trump’s US attorneys with “interim” or “acting” designations whom federal judges have deemed unlawfully appointed. DOJ’s appeal would send the case to the US Court of Appeals for the Fourth Circuit, as the Trump administration wages similar battles at the Third and Ninth Circuits.
Currie’s ruling allows DOJ to refile the cases, though legal scholars and former prosecutors say this would require finding lawyers within the US attorney’s office willing to sign onto indictments that many have disparaged as politically motivated. Halligan was the only prosecutor to sign off on the indictments against Comey and James.
Regardless of DOJ’s plans on the indictments, the administration’s commitment to stand by its divisive US attorney appointments increases the chances that the Supreme Court is forced to review the administration’s attempts to test the bounds of federal vacancy laws, law professors and former prosecutors said.
“This would be a unique issue before the Supreme Court,” said Gene Rossi, a shareholder at Carlton Fields, P.A. and a former assistant US attorney in the Eastern District of Virginia.
The decisions also set off confusion inside the Eastern Virginia office over who’s in charge. A mid-afternoon email directed staff to replace Halligan’s name on court filings with that of her newly arrived first assistant, Robert McBride, according to a copy of the message obtained by Bloomberg Law.
About an hour later, they received a correction advising them the change was “premature” and that they should return to using Halligan’s name in the signature block. McBride, a veteran federal prosecutor in Kentucky without experience in the Virginia district, is the latest lawyer installed from other parts of the country to support Halligan.
Refiling Indictments
Unlike other rulings so far on the Trump administration’s interim and acting US attorneys in Los Angeles, New Jersey, and Nevada, Currie dismissed the indictments signed by Halligan. That adds an extra step for DOJ to continue its prosecution of Trump’s perceived enemies as it also seeks to defend Halligan’s appointment.
“The government will be able to refile both indictments, and maybe this time without all the errors that occurred in obtaining the Comey indictment,” said Barbara McQuade, University of Michigan Law School professor and former US attorney.
Halligan faced rebukes from a US magistrate judge last week for a series of errors in securing the indictment against Comey, including DOJ’s reliance on materials obtained in previous search warrants, as well as DOJ’s potential use of privileged information to prepare its case.
Comey’s lawyer has argued the statute of limitations has expired to file charges over his 2020 testimony to Congress. But federal law allows a new indictment to be returned within six months of dismissal if the felony charges were tossed for reasons other than the applicable statute of limitations, Rossi said.
Even with this “grace period,” the administration may struggle to find someone other than Halligan, a former personal lawyer for the president, willing to bring charges against Comey and James, said Caren Morrison, a law professor at Georgia State University and former federal prosecutor.
“It seems pretty clear that the career prosecutors really did not believe there was a case there, so they didn’t want to present it to the grand jury,” Morrison said.
Halligan still faces a separate motion to disqualify her by attorneys representing Mohammad Sharifullah, who is accused of orchestrating a bombing that killed 13 US service members in Afghanistan during the US withdrawal in 2021.
Scrutiny Over Appointments
Law professors and former prosecutors say they expect federal appeals courts to affirm judges’ rulings, increasing the odds the Trump administration will ask the Supreme Court to weigh in.
“They have a right to appeal the ruling, but I think it’s so sound and so logical that any appeal will be unsuccessful,” said Rossi, who added he “absolutely” expects any of these cases to go to the high court.
Federal judges have so far ruled that moves in US attorney’s offices, including to keep favored prosecutors in successive “interim” and “acting” designations, ran afoul of the law.
In August, US District Judge Matthew Brann rejected the government’s position that Alina Habba was lawfully serving as New Jersey’s acting US attorney. After federal judges in the state declined to renew her 120-day interim term in July, the DOJ named Habba as first assistant US attorney, a position it said allowed her to fill the US attorney vacancy.
But Brann said she was ineligible to serve as acting US attorney, because she wasn’t first assistant when the top prosecutor position became vacant after the exit of the previous Senate-confirmed US attorney. The judge placed his decision on hold pending the resolution of an appeal in the Third Circuit.
The Fourth Circuit will now review interim appointments in Halligan’s case. Currie said in her ruling that the attorney general’s authority to appoint an interim US attorney lasts for a total of 120 days from the date she first invokes a vacancy after the departure of a Senate-confirmed US attorney. The clock began running in January when Halligan’s predecessor Erik Siebert was appointed as interim.
It’s possible that the Third Circuit and other courts “could all decide that all of these, beyond 120 day acting US attorneys are unlawfully there and they need to be replaced,” Morrison said.
Justin Wise also contributed to this story.
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