Judge questions whether Bondi's DOJ can reindict Comey
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Left: New York Attorney General Letitia James presents the findings of an independent investigation on August 3, 2021 in New York City (David Dee Delgado/Getty Images). Center: Lindsey Halligan, then-special assistant to the president, speaks with a reporter outside of the White House, Wednesday, Aug. 20, 2025, in Washington (AP Photo/Jacquelyn Martin). Right: Former FBI director James Comey speaks at Harvard University’s Institute of Politics’ JFK Jr. Forum in Cambridge, Mass., Feb. 24, 2020. (AP Photo/Charles Krupa, File).

On Friday, the Trump administration made clear its intention to challenge a district court ruling that deemed Lindsey Halligan’s appointment to the Eastern District of Virginia both unlawful and unconstitutional.

This potential appeal carries significant weight, especially considering it could affect the government’s unsuccessful, high-profile cases against New York Attorney General Letitia James and former FBI Director James Comey.

In late November, Senior U.S. District Judge Cameron McGowan Currie, appointed by Bill Clinton, ruled that Halligan was a “private citizen” and not a legitimately appointed Interim U.S. Attorney for the district known as the Rocket Docket. This nickname refers to the district’s reputation for handling cases more expeditiously than other federal courts.

The judge also determined that all actions derived from Halligan’s “defective appointment,” including the indictments against James and Comey, constituted “unlawful exercises of executive power.” Consequently, both cases were dismissed without prejudice.

On the same day, the U.S. Department of Justice submitted a three-page notice of appeal for each case, merely stating: “[n]otice is hereby given.”

This brief filing lacks any detailed legal reasoning and simply informs the lower court of the impending appeal. As of now, the appeal is set to be processed by the U.S. Court of Appeals for the 4th Circuit, although the docket is not yet available for public viewing.

The appeal notice takes stock of the seven discrete findings by the lower court – and will challenge them each in turn.

From one of the substantively similar filings, at length:

(1) The appointment of Ms. Halligan as Interim U.S. Attorney violated 28 U.S.C. § 546 and the Appointments Clause of the U.S. Constitution. (2) All actions flowing from Ms. Halligan’s defective appointment, including securing and signing Ms. James’s indictment, were unlawful exercises of executive power and are hereby set aside. (3) The Attorney General’s attempts to ratify Ms. Halligan’s actions were ineffective and are hereby set aside. (4) Ms. James’s motion to dismiss the indictment…is granted in accordance with this order. (5) The indictment is dismissed without prejudice. (6) Ms. James’s request for an injunction barring Ms. Halligan from participating in the prosecution of this case is denied as moot. (7) The power to appoint an interim U.S. Attorney for the Eastern District of Virginia pursuant to 28 U.S.C. § 546 during the current vacancy lies with the district court until a U.S. Attorney is nominated by the President and confirmed by the Senate under 28 U.S.C. § 541.

Comey was indicted in September. James was indicted in October.

By late October, Comey’s attorneys had identified half of the successful formula for having the indictments dismissed – the statute undergirding U.S. Attorney appointments. This winning gambit approvingly cited an obscure 1986 Office of Legal Counsel memo prepared by future Supreme Court Justice Samuel Alito.

By early November, James’s attorneys offered the second half of the winning one-two punch: arguing Halligan had been appointed in violation of the U.S. Constitution’s Appointments Clause. This well-hewed piece of the puzzle directly cited the same ruling that nixed then-special counsel Jack Smith’s Mar-a-Lago prosecution of Trump.

Eventually, arguments on the broader appointment challenge were combined in the otherwise less-than-related two cases.

The government, for its part, downplayed the defense’s arguments about Halligan’s position as “at best a paperwork error,” during a hearing. The same DOJ attorney later ridiculed the notion that DOJ has been evading the Senate confirmation process with interim appointments as “fanciful.”

In multiple hearings, Currie appeared skeptical of the government’s arguments and hinted dismissals were in the offing.

The ensuing contretemps called into question not only Halligan’s power and authority, but also the work performed by the grand juries.

Again, the DOJ pushed back, with U.S. Attorney General Pam Bondi herself intervening to try to salvage the case, to no avail.

Soon, more cracks appeared as it became clear there were admitted problems with the operative Comey indictment itself.

As it turns out, the two-count indictment was not presented to the full grand jury after count one – a false statement charge in an initial three-count indictment – failed. Rather, the DOJ instead of presenting a new two-count indictment, removed the failed third count and had the grand jury foreperson sign the substitute document – one that differed from the document the full grand jury deliberated on.

In the end, the grand jury issues proved a bit ancillary.

Currie disqualified Halligan on Nov. 24.

The late-game efforts to salvage her position – and the two major cases she worked on – could now drag on for several months.

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