WASHINGTON (FN) — Former FBI Director James Comey and New York Attorney General Letitia James, two long-time political adversaries of President Donald Trump, urged a federal judge Thursday to dismiss the criminal charges against them, arguing that the prosecutor who secured their indictments was unlawfully appointed.
An indictment is a formal written charge issued by a grand jury stating that prosecutors have presented enough evidence to justify moving forward with a criminal case. It does not determine guilt; it functions as an authorization to prosecute.
Comey and James contend that interim U.S. Attorney Lindsey Halligan was installed in violation of a federal statute that limits how long an interim U.S. attorney may serve without Senate confirmation. Their lawyers say the 120-day interim period had already expired under Halligan’s predecessor, making Halligan ineligible for a new interim term and stripping her of authority to bring the indictments.
Argument Mirrors One Raised in a Trump-Related Case
The legal argument — that the government improperly “reset” the 120-day period for an interim appointment — mirrors a contention previously raised in a federal case involving a Trump-appointed U.S. attorney. In that earlier dispute, defense lawyers claimed the Trump administration circumvented Senate confirmation by repeatedly relying on interim appointments.
During Thursday’s hearing, U.S. District Judge Cameron McGowan Currie referenced that earlier decision and directly asked lawyers whether it was “correctly decided,” signaling that her ruling may hinge on how courts interpret the statute’s limits on interim service.
Background on James Comey
Comey served as FBI director until President Trump dismissed him in 2017 during the bureau’s investigation into Russian interference in the 2016 election. The firing triggered the appointment of Special Counsel Robert Mueller and established Comey as a prominent critic of the president. His attorneys now argue that the charges against him appear retaliatory, citing his history with Trump and Halligan’s prior work as part of Trump’s legal team.
Background on Letitia James
New York Attorney General Letitia James led the high-profile civil fraud case against Trump and the Trump Organization, resulting in major financial penalties and stoking a years-long feud between the two. James has been one of Trump’s most consistent legal adversaries, and her legal team contends the federal charges represent a continuation of what they describe as reprisals against the president’s political opponents.
Justice Department Response
The Justice Department argues that Halligan’s appointment complied with the statute and that even if procedural defects occurred, they would not justify dismissing the indictments. The government also notes that Halligan was granted additional authority as a “special attorney,” which prosecutors say independently empowered her to act.
What Comes Next
Judge Currie is expected to rule within weeks. If she finds Halligan’s appointment invalid, prosecutors may be forced to re-indict the defendants under a lawfully appointed U.S. attorney or potentially abandon the cases altogether. A ruling against the government could also have broader implications for how the administration uses interim appointments and for ongoing debates over presidential influence on the Justice Department.
SIDEBAR: What Is 28 U.S.C. § 546?
28 U.S.C. § 546 governs how interim U.S. attorneys are appointed when a vacancy occurs.
Key Provisions:
- Appointment by the Attorney General: Up to 120 days.
- After 120 days: Only the district court may appoint a replacement to serve until Senate confirmation.
- Ambiguity: The law does not explicitly allow a second interim appointment by the Attorney General after the first 120-day period expires.
Relevance to the Comey-James Case:
Their lawyers argue that Halligan’s appointment violated this statute, while the government contends that each interim appointment starts a new 120-day period.
LEGAL ANALYSIS: The 120-Day Interim Controversy
The Comey-James case highlights a rarely litigated statutory question: Can the executive branch “reset” the 120-day interim appointment period under 28 U.S.C. § 546?
Points in Defense’s Favor:
- The statute explicitly limits interim U.S. attorneys to 120 days, after which only the district court can appoint a replacement.
- Appointing Halligan after the first interim period may violate both the letter and intent of the statute, potentially rendering the indictments invalid.
- Historical precedent shows some courts have strictly interpreted this limit, invalidating appointments where the executive exceeded 120 days.
Points in Government’s Favor:
- The statute does not explicitly forbid multiple interim appointments.
- Courts have sometimes allowed a “new” interim term if the first appointee’s service ended, citing practical needs to ensure continuous prosecutions.
- Halligan’s designation as a “special attorney” could provide independent authority to bring charges, insulating the indictments from procedural challenges.
Potential Implications:
- A ruling for Comey and James could invalidate indictments not only in this case but potentially in other politically sensitive prosecutions, raising broader separation-of-powers concerns.
- Conversely, a ruling for the government could strengthen executive discretion in filling U.S. attorney vacancies, potentially expanding presidential influence over federal criminal prosecutions.
Bottom Line:
The case is likely to test the limits of federal statutory authority and the safeguards meant to prevent political interference in U.S. attorney appointments — and may set a precedent impacting both high-profile political cases and everyday federal prosecutions.
