Some further reinforcing comments on my post last Friday in which I explained why, based on the facts as I understand them, I believe that Lindsey Halligan has not been validly appointed as United States Attorney in the Eastern District of Virginia:
1. There are two general authorities for filling a U.S. Attorney vacancy and two avenues under each authority.
One authority is section 546 of Title 28. Section 546 authorizes the Attorney General to appoint an interim U.S. Attorney for a term of 120 days. Under section 546(d), once the 120-day term expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”
An individual who has been validly appointed pursuant to section 546 holds the office of U.S. Attorney, even though only on an interim basis. That individual may properly be referred to as United States Attorney or interim United States Attorney, but it would be wrong to refer to that person as acting United States Attorney.
The other authority is the Vacancies Reform Act. Under subsection 3345(a)(1) of Title 5, the first assistant in a U.S. Attorney’s office automatically becomes acting United States Attorney, unless the president exercises his authority under subsections 3345(a)(1) or (2) to direct an eligible individual to become acting United States Attorney.
2. The distinction between a United States Attorney (even on an interim basis) and an acting United States Attorney is elementary, and it reflects whether the person is exercising the authority of the office via section 546 or via the Vacancies Reform Act.
The Department of Justice meticulously recognizes the distinction. We see, for example, that it lists Alina Habba as “Acting U.S. Attorney” for the District of New Jersey. By contrast, it identifies Lindsey Halligan as “United States Attorney” for the Eastern District of Virginia. That’s also how she identified herself on the indictment of James Comey, and it’s how DOJ refers to her in its press release on the indictment.
(There are pending lawsuits over whether Habba and Bill Essayli have been lawfully made acting U.S. Attorneys. As I see it, the issues in those lawsuits have no bearing on whether Halligan was lawfully appointed under section 546. I invite correction from anyone who thinks I’m mistaken.)
3. What all this means is that it seems clear that the Trump administration purported to place Halligan in office via an Attorney General appointment under section 546.
One muddled piece of evidence to the contrary is a Truth Social post in which Donald Trump states: “It is my honor to appoint Lindsey Halligan, who has been serving as Special Assistant to the President at the White House, as United States Attorney for the Eastern District of Virginia.” It’s difficult to make sense of this, and there is no reason to expect Trump to be attentive to the legal niceties. Perhaps he is stating his intent to nominate her to the full-time position. In any event, there is nothing here to indicate that he is purporting to name her as acting U.S. Attorney, and she wouldn’t be eligible under subsections 3345(a)(1) or (2).
4. As I explained in my initial post, the defect in a purported appointment of Halligan under section 546 arises from the fact that Erik Siebert had already served a full 120-day term as AG-appointed U.S. Attorney. Section 546 is best read to mean that the Attorney General cannot make a second interim appointment under section 546 after the first interim appointment has expired. Instead, the authority to make an interim appointment then lies with the district court. This has been DOJ’s own longstanding position, set forth in a 1986 Office of Legal Counsel opinion by then-deputy assistant attorney general Samuel Alito.
It turns out that (contrary to what I thought on Friday) Alito’s OLC opinion is publicly available. Here are some key excerpts (underlining added):
The statutory plan [for section 546] discloses a Congressional purpose that after the expiration of the 120-day period further appointments are to be made by the court rather than by the Attorney General….
Thus, it would appear that Congress intended to confer on the Attorney General only the power to make one interim appointment; a subsequent interim appointment would have to be made by the district court. At most, it could be said that the district court has the primary authority to make subsequent interim appointments, and that the Attorney General may make such appointments only if the district court refuses to make such appointments, or fails to do so within a reasonable period.
In a footnote, Alito explains that Congress has constitutional authority to “place restraints on a statutory authority to make interim appointments.”
(My point isn’t that this bears special weight because Alito wrote it. It’s that what Alito wrote sure seems to be right and has been DOJ’s longstanding position.)