WASHINGTON — The Justice Department is appealing a federal judge's rulings that tossed out criminal charges against former FBI Director James Comey and New York Attorney General Letitia James.
The judge dismissed the indictments on Nov. 24 after determining that Trump loyalist and first-time prosecutor Lindsey Halligan was unconstitutionally appointed.
The Justice Department said at the time it planned to appeal, but in an unusual move, it later attempted — twice — to reindict James with different prosecutors presenting the case. Both efforts were unsuccessful.
Halligan, whom U.S. District Judge Cameron Currie described as "a former White House aide with no prior prosecutorial experience," was named the top federal attorney for the Eastern District of Virginia immediately after career prosecutors and veteran prosecutor Erik Siebert determined that the government's cases against Comey and James were not strong enough to move forward.
Halligan presented the Comey case to a federal grand jury by herself just days before the five-year statute of limitations was set to expire on comments Comey made before a congressional committee that were central to the prosecution.
Comey was indicted on charges of making a false statement to Congress and obstructing a congressional investigation. He pleaded not guilty.
Halligan also presented the James case on her own. It involved allegations that James was saving roughly $50 a month on a mortgage after having told a bank that the property was a primary residence.
James was indicted on charges of bank fraud and making a false statement to a financial institution. She also pleaded not guilty.
Currie wrote on Nov. 24 that both cases presented "the unique, if not unprecedented, situation where an unconstitutionally appointed prosecutor" was exercising power she "did not lawfully possess" and "acted alone in conducting a grand jury proceeding and securing an indictment."
Comey and James have been the targets of repeated criticism by President Donald Trump, who had called for both of them to be prosecuted, including in a social media post the day Halligan was appointed. The grand jury indicted Comey days later.
Attorney General Pam Bondi on Nov. 24 described Halligan, a former insurance attorney and novice prosecutor, as "an excellent U.S. attorney" and said the Justice Department had designated her a "special U.S. attorney" so she "can fight in court just like she was."
Trump defended Halligan the next day, telling reporters, “Lindsey’s a very talented lawyer.” He also argued that Comey and James “got out on a technicality.”
“If you look at the actual charges, I think anybody that looks at it very fairly would say, ‘Boy, are they guilty.’ So let’s see what happens over the next week,” Trump said.
Currie, a Bill Clinton appointee who is based in South Carolina, heard the arguments on the disqualification issue instead of a judge from the Eastern District of Virginia because local judges would be involved in selecting Halligan’s replacement.
She found Halligan's appointment was unlawful because it violated a federal statute that allows the U.S. attorney general's office to appoint interim U.S. attorneys for no more than 120 days unless the Senate confirms them before then.
Siebert, Halligan's predecessor, had not been confirmed, but the local federal judges exercised their independent appointment authority to keep him on beyond the 120-day limit. Attorneys for Comey had argued that it was up to the judges, not Bondi, to name Siebert's replacement until the Senate confirmed Halligan.
The Justice Department has had similar issues in other states because of how it has handled naming U.S. attorneys.
Prosecutors in New Jersey, Nevada and California have been disqualified, as well. The Justice Department is appealing those rulings.
