Disqualified Lindsey Halligan faces a court deadline to explain why she still claims to be U.S. attorney for the EDVa. Meanwhile, her No. 2 has been fired.
While a Trump-appointed judge presses the unlawfully appointed U.S. attorney to explain why she’s still pretending to be the U.S. attorney, the first assistant U.S. attorney has now been fired by the Justice Department under murky circumstances. It’s just another day in the life of the top federal law enforcement office in the Eastern District of Virginia (EDVa).
Misrepresenting Lindsey Halligan’s Status
As I’ve extensively covered (and alluded to again today), in September, President Trump ousted Eric Siebert, an experienced and well-regarded prosecutor whom he’d nominated to become the EDVa’s U.S. attorney, pending Senate confirmation (which Siebert would easily have achieved). At the time, Siebert was holding the position on an interim basis, with the endorsement of the EDVa’s district judges. It has been disputed whether Siebert resigned under pressure because he refused to indict Trump enemies James Comey and Letitia James, or was fired by the president for that reason; but what matters is that he was pushed aside.
Trump then directed Attorney General Pamela Bondi to name his former private attorney and then–White House staffer, Lindsey Halligan, to take over the EDVa — one of the most important U.S. attorney’s offices in the country. This, despite the facts that (a) Halligan, a 36-year-old former Florida insurance lawyer, had no prosecutorial experience (or, for that matter, meaningful criminal law experience); and (b) Halligan was legally unqualified to take over because Siebert had already served the 120 days permitted by statute for an interim U.S. attorney (i.e., Halligan could only take over as U.S. attorney if the president nominated and the Senate confirmed her, and there was no prospect of the latter’s happening — probably ever, but certainly not soon).
To shorten a long story (which we’ve already told in detail), the Fourth Circuit federal appeals court appointed Judge Cameron McGowan Currie to hear challenges to Halligan’s interim appointment by Comey and James, whom she had dutifully (and dubiously) indicted. Shortly before Thanksgiving, Judge Currie threw out those indictments on the ground that Halligan was not qualified by statute to wield the authority she’d purported to wield, and because no federal prosecutor who was properly qualified had participated in the grand jury proceedings leading to the two indictments.
Nevertheless, Halligan has continued, with the Trump Justice Department’s indulgence (indeed, its insistence) to represent that she is the EDVa’s United States attorney. In fact, as this is written at 4 p.m. on Monday, the Justice Department’s EDVa website identifies her as such, without caveat. She is reportedly still signing pleadings on behalf of the office as “United States Attorney.” As I detailed last month, this leaves the government vulnerable to accusations — particularly in false-statements and fraud prosecutions, such as the ones Halligan tried to bring against Comey and James — that the Justice Department itself is guilty of false and fraudulent representations.
Last week, a Trump-appointed EDVa judge, David Novak, ordered Halligan to explain, by Tuesday (tomorrow), why she persists in using the title. Judge Novak issued the three-page order on his own initiative (i.e., not at the request of the defense in the pertinent case). The court did not just direct Halligan and the Trump DOJ to “set forth the reasons why this Court should not strike Ms. Halligan’s identification of herself as United States Attorney from the indictment in this matter.” He added:
Ms. Halligan shall further explain why her identification does not constitute a false or misleading statement. See Va. R. of Prof Conduct 3.3(a) (2025) (“A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal.”); 7.1 (“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”); 8.4 (“It is professional misconduct for a lawyer to . . . (c) engage in conduct involving dishonesty … or misrepresentation which reflects adversely on the lawyer’s fitness to practice law.”) …
We’ll see what Halligan and the Trump DOJ submit tomorrow. Reportedly, the DOJ rationalizes that since Judge Currie “merely” ruled that Halligan is not qualified to act as U.S. attorney and did not take the added step of ordering her to vacate the position, and since the DOJ is appealing Currie’s ruling, it is somehow proper for the government to continue holding her out as the U.S. attorney.
Yet, Novak counters that Currie’s ruling is binding precedent in the EDVa because the Justice Department never obtained a stay against its application — to the contrary, the cases against Comey and James have been dismissed. For what it’s worth, while I believe Halligan should have voluntarily departed and otherwise have been removed by Bondi, I am skeptical of Judge Novak’s reasoning. Ordinarily, a ruling by a district judge does not bind her peers on the same district court; only rulings from superior courts (the Circuit and Supreme Court) are binding. Yet, in this instance, the Fourth Circuit appointed Judge Currie (of the District of South Carolina) to resolve the Halligan disqualification issue on the theory that the EDVa judges were conflicted. Novak may be right, then; after all, if the EDVa judges are recused on the question and their Circuit superiors appointed Currie to resolve it, individual EDVa judges are ill-positioned to refrain from enforcing Currie’s ruling — unless and until the Fourth Circuit reverses it (which is highly unlikely — that’s why the DOJ didn’t seek a stay).
In any event, it seems to me that Novak is correct in reasoning that (a) a federal judge (Currie) with jurisdiction over the question has ruled that Halligan is not legally qualified to serve as U.S. attorney, even on an interim or acting basis, and therefore (b) the Justice Department should comply with that order unless it articulates a tenable reason for not doing so. The DOJ should not jeopardize the validity of other cases brought under Halligan’s purported authority while waiting for a court to take what should be the unnecessary step of ordering Halligan to leave.
Obviously, Trump’s DOJ subordinates fear an explosion of the president’s wrath if they take it on themselves to remove an appointee he wanted installed, even though they know continuing to portray Halligan as the EDVa U.S. attorney is illegal. Given the choice, they would rather be upbraided by the court than risk being canned for telling the president that the law constrains him — as the Justice Department has traditionally done when necessary.
Firing Halligan’s No. 2
Today, meanwhile, the Justice Department has fired Robert McBride, a former Navy lawyer and Justice Department prosecutor from Kentucky, who has been functioning for the last couple of months as Halligan’s No. 2 — i.e., the first assistant U.S. attorney for the EDVa.
It has been reported that McBride, who is 64, expressed misgivings about pursuing a new indictment of Comey. At least for now, I wouldn’t read too much into that. Current reporting indicates that McBride is not against indicting Comey per se; rather, he said he could not simultaneously run the EDVa and take on the Comey matter as lead prosecutor. It’s possible, of course, that he truly is feeling the strain of added responsibilities because of doubts about Halligan’s status; it’s also possible, though, that he doesn’t want any part of the Comey investigation and offered his other responsibilities as a pretext for declining.
In any event, his reluctance to do both jobs was unacceptable to the administration, so he is out.
An unidentified source said to be familiar with the matter told the New York Times that McBride was fired “because he had secretly met with judges in the [EDVa] to try to persuade them to appoint him as U.S. attorney.” Perhaps . . . but count me as skeptical. I have to assume McBride knows that any prosecutor the district judges tried to appoint without the Trump Justice Department’s approval would instantly be fired by the president. Still, other reporting (e.g., here) relates that Halligan did not know McBride was meeting with judges, was angry when she found out, and thus Main Justice approved of McBride’s termination.
Was McBride promoting himself at Halligan’s expense? We just don’t know. For many legitimate administrative purposes, it is not unusual for top officials in a district U.S. attorney’s office to meet with judges. It would be insubordinate, however, for a prosecutor to do that without the approval of the district U.S. attorney — or, at least, the lawyer the DOJ maintains is the de facto U.S. attorney.
What a train wreck.