AG Bondi Tries to Backdate EDVa Prosecutor’s Appointment

In a post earlier today, I outlined the state of play in former FBI Director James Comey’s motion to dismiss the Trump Justice Department’s indictment against him on the grounds that Lindsey Halligan was not qualified to act as the interim United States Attorney for the Eastern District of Virginia. Comey contends that Halligan is ineligible to serve pursuant to Section 546, the statute under which Attorney General Pamela Bondi appointed her back on September 22, because the 120-day limit for an interim term had already been served by Halligan’s predecessor, Erik Siebert.

Siebert was fired by President Trump after he declined to prosecute Comey and another Trump political foe, New York Attorney General Letitia James. In addition to indicting Comey, Halligan indicted James; the latter’s motion to disqualify Halligan, on the same Section 546 rationale, has been consolidated with Comey’s.

AG Bondi has tried to shore up the likely infirmity of Halligan’s interim U.S. Attorney status by supplementing her credentials with an appointment as “Special Attorney,” and attempting to backdate that supplement.

Clearly, the AG is concerned that Halligan will be found disqualified by Judge Cameron McGowan Currie, the senior Clinton appointee assigned by the Fourth Circuit to rule on the Comey and James disqualification motions.

President Trump and AG Bondi have used the interim appointment procedure in several districts in order to install as U.S. Attorneys Trump loyalists who might not be Senate-confirmable. (Halligan, for example, had no prosecutorial experience prior to being appointed last month.) Courts have begun ruling that the interim appointees are ineligible once 120 days have lapsed (unless the district court approves their continued service, which a number of district courts have declined to do). For example, the interim U.S. attorney appointments of Alina Habba (in New Jersey) and Bilal Essayli (in Los Angeles) were invalidated by judges assigned to rule on disqualification motions similar to those brought by Comey and James. (The Habba case is on appeal.)

Consequently, five days ago, in conjunction with the EDVa prosecutors’ response to Comey’s first round of pretrial motions, Bondi issued an AG order “for the avoidance of doubt as to the validity of [Halligan’s] appointment” as interim U.S. attorney under Section 546. Under other statutes that vest the Attorney General with sweeping authority to oversee federal prosecutions and delegate related tasks to subordinates, Bondi appointed Halligan a “Special Attorney” credentialed to carry out prosecutorial duties in the EDVa, and specifically to “conduct and supervise” the prosecutions of Comey and James.

In an even more unusual move, Bondi’s order purported to make the Special Attorney designation retroactive to September 22 — i.e., three days before Halligan indicted Comey. (James was indicted about two weeks later.) The AG is thus pushing a nunc pro tunc theory that Judge Currie should analyze Halligan’s September 25 presentation of the Comey indictment to the grand jury as if, at the time, she had the Special Attorney status that Bondi did not confer until October 31.

The technical objective of these machinations is to put Halligan’s status on the same footing as the aforementioned Essayli’s. As I detailed last week, Judge J. Michael Seabright, a Bush-43 appointee, ruled that even though Essayli was not eligible to act as an interim U.S. attorney under Section 546 (or acting U.S. Attorney under Section 3345), it was lawful for Bondi to retain him as a Special Attorney (and appoint him First Assistant U.S. Attorney) so he could conduct and supervise prosecutions in that capacity.

Because of Halligan’s peculiar role in Comey’s case, I don’t think Bondi’s gambit is going to work. Yet, that doesn’t necessarily mean Comey will succeed in getting the indictment thrown out with prejudice; Halligan would probably be permitted to revive the case.

Whatever Halligan’s status may be now, she was not a Special Attorney when she indicted Comey; Bondi had only appointed her as an interim U.S. attorney, and Siebert’s already completed 120-day interim term meant the AG could not legitimately appoint an interim U.S. Attorney to fill the same vacancy.

Moreover, in Essayli’s case, even though he was not eligible to serve as interim U.S. attorney after 120 days, his subordinates had brought the indictments and were otherwise conducting the prosecutions of the defendants who tried to get their cases thrown out. Judge Seabright rejected those motions to dismiss because the subordinates’ authority to prosecute came from the Justice Department, not Essayli. By contrast, in Comey’s case, it thus far appears that Halligan handled the entirety of the grand jury presentation and signed the indictment herself — i.e., based on what is known publicly about the secret grand jury proceedings, there seems to have been no material participation by Halligan’s subordinates. Consequently, if she were ineligible, the indictment is probably going to be voided.

Nevertheless, as previously addressed here, even though the five-year statute of limitations for indicting Comey based on alleged false statements on September 30, 2020, has now lapsed, it is likely that Halligan could reindict the case. Under Section 3288 of the federal penal code, if an indictment was timely brought (as Comey’s was, albeit barely) and was then dismissed by the court for some legal reason, the government would have six months from the date of dismissal to bring a new indictment based on the same charges.

Hence, given that it was legal for Bondi to appoint Halligan as a Special Attorney and to delegate prosecutorial authority to her, she would probably be permitted to reindict and prosecute Comey even if Judge Currie rules that the current indictment must be dismissed due to Halligan’s lack of Section 546 eligibility.