The Trump administration on Tuesday urged a federal appeals panel to revive criminal prosecutions against former FBI Director James Comey and New York Attorney General Letitia James, arguing that Lindsey Halligan—the U.S. attorney who filed the indictments—was lawfully appointed as interim U.S. attorney for the Eastern District of Virginia.
The three-judge panel of the U.S. Court of Appeals for the 4th Circuit, comprising two Obama appointees and one Trump appointee, heard oral argument but gave no clear indication of how it will rule. Government counsel Henry Whitaker faced pointed skepticism from the bench as judges pressed the administration’s interpretation of the statute governing interim U.S. attorney appointments.
"I understand that you're representing that this administration has no incentive to engage in a cascade or carousel of interim appointees," U.S. Circuit Judge Albert Diaz said. "But under your reading of the statute, that is the logical conclusion, that an executive could just continue with a succession of appointments, thereby essentially cutting off both the district court and the Senate's advice and consent power. Isn't that true?"
When Whitaker replied that the administration had "no incentive" to pursue such a pattern, Judge Diaz pressed the point further, asking whether a "nefarious, ne'er-do-well executive" could exploit the statute to bypass confirmation. Whitaker acknowledged the judge's concern.
Judge Julius Richardson, the Trump appointee on the panel, at times appeared more sympathetic to the government, suggesting that if the executive branch could abuse the appointment mechanism, Congress could amend the statute to close any loopholes.
In November, a federal judge had disqualified Halligan from serving as interim U.S. attorney and dismissed the indictments she brought against Comey and James after concluding her appointment was improper. Several other courts have reached similar results, disqualifying interim U.S. attorneys appointed through comparable procedures—most recently removing Alina Habba in New Jersey.
The 4th Circuit's decision will determine whether the dismissed, high-profile prosecutions can proceed and could clarify limits on how the executive branch fills temporary U.S. attorney vacancies.
