This is the third of four posts on round 1 of the Comey pretrial motions that were filed earlier this week. (See post 1 and post 2.) In this post we’ll address the defense argument that Attorney General Pamela Bondi’s appointment of Lindsey Halligan as interim U.S. attorney for the Eastern District of Virgina (EDVa) was illegal. I’ve contended since Halligan’s appointment that there are grounds for disqualification.
It’s straightforward. Comey contends that under the Constitution’s appointments clause (art. II, §2, cl. 2) government officials are divided into superior and inferior officers. Superior appointed officers, such as cabinet officials, must be nominated by the president and confirmed by the Senate, under its constitutional “advice and consent” role. The defense asserts that district U.S. attorneys are inferior officers. (I believe that proposition is correct, though not as settled as Comey’s motion suggests; for present purposes, it makes no difference whether they are inferior or superior since U.S. attorneys are appointed the same way superior officers are.) Inferior appointed officers may be appointed under whatever procedure Congress establishes “by law” (i.e., pursuant to statute). As interim U.S. attorneys wield the same broad, semi-autonomous authority as Senate-confirmed U.S. attorneys, they too are inferior officers whose appointments must be consistent with the procedure established by statute.
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