Comey Pretrial Motions: Disqualification of Interim U.S. Attorney

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.

Congress has made two major provisions for district U.S. attorneys (in Title 28, U.S. Code).

First, under Section 541, they must be nominated by the president and confirmed by the Senate — just like superior officers (which is why it makes no practical difference whether they are deemed “inferior” or “superior”).

Second, under Section 546, if the position becomes vacant, Congress has empowered the attorney general to fill the vacancy with an interim U.S. attorney for a period of 120 days. The presumption in the statute is that, in the interim, the president will seek to fill the position with a nominee who achieves Senate confirmation. We know that because (a) interim period ends if the Senate confirms a nominee, even if the 120-term hasn’t lapsed; and (b) the attorney general is not permitted to name as an interim U.S. attorney a person whose appointment to that post by the president has been rejected by the Senate.

If the 120-day interim term expires and no nominee has been Senate-confirmed, the court may appoint a U.S. attorney until the vacancy is filled – again, the Senate’s confirmation of a nominee would trump the court’s appointment. The U.S. attorney appointed by the court may, but need not, be an interim U.S. attorney previously appointed by the AG (i.e., the court may vote to extend the 120-day interim appointee, but that appointee may not otherwise continue in office beyond 120 days).

Patently, Section 546 is designed as a temporary measure. If a vacancy occurs, it is designed to allow a district U.S. attorney’s office to function for a short time under an interim official chosen by the executive branch alone; but the statute maintains the law’s default position that there must be a check on the president’s nomination of major executive officials: nominees must be Senate confirmed; or, if a vacancy persists too long without a Senate-confirmed nominee, then judicial approval is required until Senate confirmation is accomplished.

To avoid belaboring the record, I won’t rehash the circumstances of Halligan’s appointment after President Trump fired her predecessor, Erik Siebert, for declining to indict Comey. (Naturally, the defense does go into it — it reinforces Comey’s motion to dismiss based on selective, vindictive prosecution discussed in the last post.)

Suffice it to say that Halligan was appointed after Siebert’s interim appointment exhausted the 120-day term. (While he was serving as interim U.S. attorney for the EDVa, Siebert was  nominated by the president to become, upon Senate confirmation, the full-fledged EDVa U.S. attorney; but the Senate never voted on his nomination because Trump withdrew it upon firing him.)

Hewing to the text of the statute, Comey contends that Section 546 permits only a single 120-day interim period. Since that term expired under Siebert, Halligan could not lawfully be appointed absent the court’s consent (which the Trump administration never sought, and which would surely be rebuffed if it were sought due to Halligan’s lack of prosecutorial experience). The Trump Justice Department’s counter-position — namely, that the statute should be construed to allow the president to make serial interim appointments for the same vacancy — would defeat the statutory text, and thus the appointments clause’s mandate that the appointment of inferior officers must be in accordance with statutory law. (Concededly, I am anticipating the DOJ’s responsive argument; their answer to Comey’s motion is not due until November 3.)

We must note an irony of the administration’s position (which is not urged in Comey’s motion). President Trump succeeded in getting dismissed the indictment against him in the Mar-a-Lago documents case, on the ground that Jack Smith’s appointment as Biden DOJ special counsel was legally invalid. Smith was appointed by Biden Attorney General Merrick Garland under a regulation, not a statute. Because Smith was at least an inferior officer, Trump argued that his appointment had to be either approved by the Senate or consistent with a statute – an argument that persuaded the district court.

Yet here, and in connection with several other district U.S. attorneys, the president is attempting to evade legal constraints that prohibit unilateral executive action: the constitutional preference for Senate confirmation, and Section 546’s requirement of court approval for an interim U.S. attorney after 120 days. The framers were concerned that, without a check on the president’s appointment power, significant executive authority could be placed in the hands of officials who were unworthy due to lack of experience, judgment, or character.

The president has taken to complaining about the difficulty of getting his preferred appointees approved given the ability of Democrats, especially in blue states, to block them. But every president has had to deal with that tension. It requires negotiation with the other side. Usually, the end result is either that an appointee is an acceptable compromise who would not necessarily be either side’s first choice; or the two sides divide up the available appointments, such that by giving the opposition party some of its preferred appointees, the president gets most of his chosen appointees approved. Contrary to White House rhetoric, no president gets to install all of his preferred appointees on the rationale that he won the election and is entitled to govern as he sees fit. The Constitution determines how our government works.

The defense does note that the current Justice Department’s construction of Section 546 deviates from the position that the DOJ’s Office of Legal Counsel took in a 1986 memorandum written by then-Deputy Assistant Attorney General (now-Supreme Court Justice) Samuel Alito. He reasoned that the attorney general could not make a subsequent appointment after the expiration of the 120-day period, adding that “the statutory plan discloses a Congressional purpose that after the expiration of the 120-day period further interim appointments are to be made by the court, rather than by the Attorney General.” Ed Whelan previously wrote about Alito’s OLC opinion, here and here (and noted that the opinion itself is posted online, here).

The Comey defense’s position is also consistent with the most consequential ruling on this subject to date: Judge Matthew Brann’s invalidation of Alina Habba’s appointment as interim U.S. attorney after the 120-day period had expired. Judge Brann, an Obama appointee who is chief judge of the Middle District of Pennsylvania, was appointed by the Third Circuit to decide the issue. His comprehensive ruling is now before the Third Circuit, which heard oral arguments on Wednesday.

I noted last week that the defense motion for Halligan’s disqualification will also be decided by a judge from outside the EDVa, rather than by Judge Michael Nachmanoff, the Biden appointee in the EDVa who is presiding over Comey’s case. The Fourth Circuit has designated Judge Cameron McGowan Currie, a Clinton appointee and senior judge from the District of South Carolina, to design Comey’s motion.