Today, a federal judge ruled that Lindsey Halligan, the interim U.S. Attorney for the Eastern District of Virginia, was unlawfully appointed and “had no lawful authority” to present Comey’s indictment to the grand jury.
As a result, he granted James Comey’s motion to dismiss the indictment and the motion to dismiss of Letitia James.
While the court’s order dismissed the indictment without prejudice, the dismissal – if upheld – may effectively end the prosecution, as the statute of limitations on Comey’s crimes (false statements and obstructing a congressional proceeding) will have since passed.
(…) The Appointment Clause is found in Article II of the Constitution, and the relevant part states that principal officers must be appointed by the President “with the Advice and Consent of the Senate.” While U.S. attorneys are inferior officers, Congress – in accordance with its Constitutional mandate under Article II – has provided the law by which U.S. attorneys are appointed through Senate approval. See 28 U.S.C. § 541(a) (“The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.”).
Of course, this presents a problem for new Presidential administrations – sometimes, there are delays in the Senate confirmation of a U.S. Attorney. Or, a nomination may be terminated or rejected by the Senate, which requires the appointment of a temporary U.S. Attorney.
Congress addressed that problem through Section 546, which states:
“The Attorney General may appoint a United States attorney for the district in which the office of United States attorney is present.”
But there are some limitations to that appointment power conferred to the Attorney General under Section 546. First, the Attorney General may not nominate a person whose appointment has been refused by the Senate. And second, the interim appointment expires in 120 days.
Addressing the circumstances where the 120-day appointment expires, Section 546 states:
“the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.”
Here’s where we get to the Halligan situation. Her predecessor was Erik Siebert, who had a 120-day appointment as U.S. Attorney for EDVA. His appointment was to expire on May 21, 2025, so the EDVA judges extended his appointment until the vacancy is filled.
Siebert, however, resigned from his position – reportedly because of his concern in pursuing charges against James Comey and Letitia James. Faced with this vacancy, Attorney General Bondi appointed Halligan.
That gets us to the issue in the Comey and Letitia James cases: whether the Attorney General can appoint another interim U.S. Attorney, or whether subsequent appointments may only be made by the judges of the applicable judicial district.
Section 546 does not explicitly answer that question. There is no stated prohibition from the Attorney General appointing a second interim appointment. Furthermore, there is no explicit language that only the district court may make an appointment after the 120 days.
For reference, here is the text in full:
Judge Cameron Currie (Credit: public domain)
I provide the text in full because it is important in light of Judge Currie’s order. He found that the language makes “clear” that the appointment power does not revert back to the Attorney General “if the Court-appointed U.S. Attorney leaves office before a Senate-confirmed U.S. Attorney is installed.”
We read Section 546 different. The court is just wrong. The law gives the district court the option to appoint a U.S. Attorney until the vacancy is filled. But providing an option does not confer absolute authority. Neither does it take the lawful authority (provided in Section 546(a)) away from the Attorney General to make another appointment. In fact, the only limitation on the authority of the Attorney General is that they cannot appoint those who were previously rejected by the Senate.
Part of the court’s reasoning (we won’t address everything in its lengthy order) was that allowing the Attorney General to make multiple interim appointments would render 546(d) – the part allowing the district to make its own appointment – “insignificant” and “dormant in all but the most unlikely situations.” This would thus allow the Attorney General’s appointments to “serve indefinitely” without Senate approval.
But this parade of horribles is unpersuasive. Not only do many statutory provisions lie dormant by their nature (think emergency appointments, emergency powers, etc.) but there are definitely trade-offs when the Attorney General has to keep making 120-day appointments, such as the inability to properly further the President’s ambitions or the inability to find worthy candidates to serve on such temporary positions.
The court also looked to the legislative history of Section 546 to support its order, citing Democrats like Senator Patrick Leahy who, in 2006, stated that Section 546 “is not designed or intended to be used repeatedly for the same vacancy.”
In doing so, the court cherry picked the statements of Senators who agreed with his position while disregarding those Senators whose statements on Section 546 disagreed with his finding. As noted in the Government’s motion on this issue, Senator Jon Kyle observed, Section 546 reinstated the same language as a prior law that allowed the Attorney General to “make consecutive 120-day appointments of interim U.S. attorneys.”
But that legislative history wasn’t in the court’s order. Neither were the facts that Section 546, which was amended in 2006/2007 to restore the prior version’s statutory language that was understood to allow successive appointments. The judge, in effect, “looked over the crowd and picked out his friends.”
As the Government further explained:
“If Congress had intended to block successive appointments in 2007, as Defendants claim, returning to the former text that had long been understood to authorize such appointments would have been a bizarre way of doing so.”
Where do we go from here?