Following James Comey’s appearance in Virginia federal court where he formally pleaded not guilty to two criminal charges, it was unsurprising when the former FBI director’s defense announced plans to dismiss the case as a retaliatory and improper prosecution driven by President Donald Trump seeking payback. Yet, a different route to dismissal has surfaced—one that could potentially invalidate the case by itself: questioning the legitimacy of the Trump-aligned interim U.S. attorney who was the singular prosecutor signing the indictment.

Patrick Fitzgerald, a confidant of Comey and his defense lawyer, earned his reputation as a longstanding federal prosecutor and U.S. attorney by tackling major political corruption cases, prosecuting various high-profile figures who were later granted clemency by Trump during his initial presidency.

Conversely, Lindsey Halligan has not led any prosecution until this case, and Fitzgerald seems poised to contend that her appointment was unlawful. Given that the statute of limitations expired on September 30, this could prove to be a critical flaw compromising the indictment.

“We believe it’s an unlawful appointment,” Fitzgerald allegedly communicated to U.S. District Judge Michael Nachmanoff on Wednesday morning, mentioning also “our perspective is that this prosecution was directed by President Trump.”

Law&Crime has previously reported on how potentially damaging the discovery process could be if the case proceeds, considering that three separate prosecuting offices, including the EDVA office now under Halligan, have previously determined that evidence against Comey was inadequate to establish probable cause.

These revelations, combined with the president’s own words about Comey, his open directive for U.S. Attorney General Pam Bondi to act, and the resulting appointment of Halligan — by transparently forcing out interim U.S. Attorney Erik Siebert because he would not bring the case — each play right into the hands of the defense’s promised motion to dismiss for selective or vindictive prosecution.

Questions have also swirled regarding Halligan, a former Florida insurance lawyer who also served as Trump’s personal attorney in his Mar-a-Lago classified documents case and in at least one failed defamation lawsuit against CNN.

In late September, National Review’s Ed Whelan, a former clerk to Antonin Scalia and former DOJ Office of Legal Counsel (OLC) principal deputy assistant attorney general, led the charge of conservative criticism over Halligan’s installation, arguing that if she was not validly appointed as U.S. attorney, as he believed, that appeared to be a “fatal legal flaw.”

Whelan reasoned that the DOJ’s longstanding view has been that the attorney general “may not make successive interim appointments” of U.S. attorneys, citing a 1986 opinion from Samuel Alito, who was an OLC attorney at the time.

While it is not clear whether Comey’s forthcoming motion will raise precisely the same argument, we do have an idea, based on two recent DOJ failures, how a judge might handle the situation if Halligan was unlawfully appointed.

Consider the interim U.S. attorney appointments of Alina Habba in New Jersey and Sigal Chattah in Nevada.

In recent months, and in a kind of musical chairs, Habba and Chattah resigned before they reached their 120-day interim limits, and Bondi responded by naming them first assistant U.S. attorneys. Because those second-in-command roles were vacant by Trump and Bondi’s design, Habba and Chattah were, at least on paper, acting U.S. attorneys.

Bondi additionally named Habba and Chattah a “special attorney” to the AG, giving them the power to act as a U.S. attorney through another means as the office’s supervisor.

But criminal defendants countered the DOJ’s personnel maneuvering by seeking the disqualification of both prosecutors and the dismissal of indictments. The defendants did not succeed in dismissing the indictments, but they did persuade two judges, sitting by designation from out-of-district jurisdictions, to disqualify Habba and Chattah because neither was validly serving as acting U.S. attorney. What’s more, both were barred from supervising their challengers’ cases.

The cases are on appeal, but it’s worth exploring what the judge in Habba’s case had to say about the kind of circumstances where dismissal of the indictment pursuant to an invalid signature would be appropriate, especially when you consider that Fitzgerald intends to allege an abuse of the grand jury process and “outrageous government conduct.”

Middle District of Pennsylvania Chief U.S. District Judge Matthew Brann wrote in August that there must be more than a “technical defect” or “harmless error.”

“[T]o dismiss an indictment, a defendant generally must show that some kind of misconduct prejudiced him with regard to the grand jury proceeding,” Brann wrote. “In cases involving the validity of the Government attorney’s signature, courts have generally reviewed the facts of the grand jury proceeding to determine whether the indictment signer was acting alone in conducting the grand jury proceeding.”

With career EDVA prosecutors refusing to sign their names, Halligan was the only prosecutor to sign the Comey indictment, under the title “United States Attorney,” and she was reportedly the only prosecutor to present the case to the grand jury.