As I anticipated from the outset, in an order today federal district judge Cameron McGowan Currie ruled that Attorney General Pam Bondi’s purported appointment of Lindsey Halligan as U.S. Attorney in the Eastern District of Virginia was invalid and that Halligan therefore had no lawful authority to present the indictment of former FBI director (and Trump nemesis) James Comey to the grand jury.
Judge Currie therefore dismissed the indictment, but she did so “without prejudice”—meaning that her order doesn’t foreclose a valid re-indictment of Comey. And despite the fact that the statute of limitations has run, a specific federal statute (18 U.S.C. § 3288) would appear to authorize a re-indictment.
1. Attorney General Bondi purported to appoint Halligan as U.S. Attorney pursuant to 28 U.S.C. § 546. Section 546 states that the Attorney General may appoint a U.S. Attorney to a vacant position for a period of up to 120 days. Subsection (d) states that when such an appointment expires after 120 days, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”
Judge Currie opines that section 546 is “unambiguous”:
The text and structure of subsection (d) in particular make clear the appointment power (1) shifts to the district court after the 120-day period and (2) does not revert to the Attorney General if a court-appointed U.S. Attorney leaves office before a Senate-confirmed U.S. Attorney is installed.
On January 21, the acting Attorney General appointed Erik Siebert as U.S. Attorney pursuant to section 546. Siebert’s 120-day term expired on May 21, but the district court appointed him to continue in that role. Siebert resigned in mid-September, apparently because of President Trump’s dissatisfaction with his reported decision not to pursue charges against Comey and New York attorney general Letitia James.
Under Currie’s reasoning, the Attorney General’s authority to appoint a U.S. Attorney to the vacancy in the Eastern District of Virginia expired when Siebert’s 120-day period expired. The appointment authority then shifted to the district court. So Attorney General Bondi did not have authority to appoint Halligan. (Slip op. at 10-19.)
For what it’s worth, I’m less convinced than Currie that section 546 is unambiguous. The Office of Legal Counsel in the Department of Justice, across different administrations, has, I believe, taken expansive views of statutory powers to fill vacancies, and in my former (2001 to 2004) capacity as principal deputy (and sometimes acting head) of OLC, I might well have done so. (See, e.g., this 2003 opinion.) But I’m not going to delve into the weeds here. Suffice it to say that one risk that an Administration takes when it tees up an untested issue of executive-branch power for judicial resolution is that the courts might reject its position.
2. Judge Currie rules that because Halligan “was not lawfully exercising executive power when she appeared before the grand jury alone and obtained his indictment,” the indictment must be dismissed. (Slip op. at 19-27.) That seems very straightforward to me.
3. Judge Currie dismisses Comey’s indictment without prejudice. (Slip op. at 27-28.)
The limitations period expired on September 30, so you might think that is a barrier to re-indictment. But 18 U.S.C. § 3288 would appear to extend the limitations period for six months:
Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, … which new indictment shall not be barred by any statute of limitations.
Section 3288 includes an exception, but it’s far from evident that the exception would kick in to bar a re-indictment:
This section does not permit the filing of a new indictment or information where the reason for the dismissal was the failure to file the indictment or information within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution.
Judge Currie briefly discusses section 3288 in the context of the question whether Attorney General Bondi validly retroactively ratified Halligan’s appointment. (Slip op. at 26-27.) I don’t understand Currie’s discussion to bear on the permissibility of a new indictment. If Currie thought that a new indictment was clearly barred, she presumably would have dismissed the indictment with prejudice.
(I hope to do a follow-on post on what might happen next.)