DOJ Challenges Judge’s Decision on Comey and Letitia James Cases, Citing ‘Paperwork Mistake

When a federal judge determined that Lindsey Halligan’s appointment as interim U.S. attorney for the Eastern District of Virginia was unlawful, it seemed to jeopardize the prosecutions of former FBI Director James Comey and New York Attorney General Letitia James. However, the Department of Justice argues that this setback is not as severe as it appears and insists that the indictments, initially supported by President Donald Trump, should still stand.

The Trump administration has submitted a 47-page brief to the 4th U.S. Circuit Court of Appeals, once again supporting Halligan’s appointment. Yet, they acknowledge that a three-judge panel might arrive at a different conclusion.

Should the court decide otherwise, it could rule that U.S. Attorney General Pam Bondi’s appointment of Halligan was not legitimate, but the indictments could still be considered “nonetheless valid.”

In November, Senior U.S. District Judge Cameron Currie dismissed the case against Comey for false statements and the bank fraud charges against James, stating that Halligan acted without the backing of “lawful authority.” The DOJ argues that Currie’s decision improperly “impos[ed] the strong medicine of dismissing indictments duly returned by two grand juries.”

Halligan maintained her position for over a month until her ongoing self-identification as U.S. attorney caught the attention of another federal judge in January.

U.S. District Judge David J. Novak, appointed by Trump, accused Halligan, a former Trump criminal defense lawyer, of orchestrating a “charade” by “masquerading” as the U.S. attorney, thereby acting “in direct defiance of binding court orders,” referencing Currie’s dismissals.

Although the DOJ said Novak was running an “inquisition,” Halligan ultimately stepped aside on Jan. 20 as judges in the Eastern District began the process for replacing her — with public advertisements for the job.

The DOJ still maintains that Bondi’s move to retroactively ratify Halligan’s dual interim U.S. attorney and special attorney titles, and her actions before the grand juries, cured any “paperwork mistake” hampering the indictments she alone signed.

“The appointment error alleged here therefore boils down to the idea that the Attorney General cited the wrong statute in authorizing Halligan to seek and obtain the indictments at issue here. Even if that paperwork mistake was legal error, it was not one that prejudiced defendants; and it has in any event been cured several times over by Attorney General orders ratifying Halligan’s actions before the grand juries and her signature on the indictments,” the government said. “The Court should reverse.”

What mattered is that Halligan was “at minimum an attorney for the government” at the time she secured the Comey and James indictments, the DOJ asserted.

“Even if the Attorney General could not appoint Halligan to the office of interim U.S. Attorney, it does not follow that Halligan was unauthorized to obtain and sign indictments on behalf of the United States. One need not be a U.S. Attorney to obtain and sign indictments—one need only be an ‘attorney for the government,’” the brief said.

In closing, the DOJ stated that Comey and James cannot show that concerns about Halligan’s appointment “prejudiced” them to the point that dismissal was warranted.

“Neither the district court nor the defendants seriously contend that the grand juries’ decisions to indict in these cases were substantially influenced by the title Halligan claimed, when it is indisputable that she could have presented the cases as a Special Attorney rather than an interim U.S. Attorney,” the brief concluded. “Nor is it fundamentally unfair to the defendants, as the court claimed, that Halligan presented the evidence to the grand juries in her capacity as interim U.S. Attorney rather than in some other capacity.”