What really happened with the appointment of Halligan as US Attorney in the Comey case?
There was an interesting discussion between commenters “om” and “Bauxite” yesterday about the dismissal of the Comey and James cases. It went like this – first, Bauxite:
You’d think that a man whose bacon was saved in Florida because the previous administration failed to legally appoint the prosecutor might be a little more sensitive about making sure that the prosecutor bringing his retribution indictments would be legally appointed.
You would think. But with Trump, you would be wrong.
Om countered with this:
Concerned Conservative makes the rulings of another activist judge into another inditement against The Great Orange Whale.
How unexpected (and pathetic).
Then Bauxite responded:
Not all of these are about activist judges, om. Trump’s administration is playing games with interim US attorney appointments because they want lackeys who can’t be confirmed by the Republican-controlled Senate. They got nailed for it.
Lots of things are activist judges. This isn’t one of them.
However, this was a situation with an explanation that can’t be reduced to a few sentences. And the details reveal – in my opinion – that the explanation is “none of the above.” I’ll try to explain.
The prosecutor whom the court ruled yesterday had been improperly appointed was Trump loyalist Lindsey Halligan. Her predecessor, Erik Siebert, had been an interim appointment of Trump’s on January 21, 2025, one day after Trump’s inauguration. Therefore it was one of the earliest acts of his second term. Why the rush? Probably at least one reason was that the statute of limitations on Comey’s case was due to run out on the last day of September, and it takes quite a while to prepare a case and so time was flying.
Later it came time for the Senate to approve the 120-day interim nomination and make it more long-lasting, and among those who recommended (in May of 2025) that Siebert get the Senate nod were Virginia’s Democrat senators, Tim Kaine and Mark Warner. But the Democrats had allowed very few of Trump’s judicial nominees to be approved by the Senate. Back then, it does not seem to have been apparent yet (and perhaps had not even been decided) that Siebert would not be approving the indictments of either Comey or James. Did the two Democrat senators already suspect Siebert would refuse? I certainly have no idea, although it’s a distant possibility. At any rate, Siebert’s final approval by the Senate was blocked by the Democrats, as were so many others.
On September 11, the news somewhat drowned out because of the Kirk assassination which had occurred the day before, Senate Republicans finally decided to use the nuclear option to end the Democrat block of judicial nominees. Only a little more than a week later, on Friday, September 19, the news came out that Siebert was leaving. Events were coming together, all at once:
Erik Seibert, the U.S. Attorney for the Eastern District of Virginia, resigned on Friday after the White House gave him the option to step down or be fired, Fox News has learned.
Siebert’s perceived unwillingness to bring local charges against New York Attorney General Letitia James, one of Trump’s top political nemeses, was the main reason for his ouster, according to multiple sources.
Note that no official word was never given on the reason, but I’m going to assume that this is correct and it was because Siebert did refuse to indict both James and Comey. However, a different reason for Siebert’s leavetaking was given by Trump:
Trump said later on Friday to reporters that he had withdrawn Siebert’s nomination; however, the president attributed it to the support Siebert had garnered from the two Democratic senators of Virginia. Sens. Tim Kaine and Mark Warner had approved Siebert’s nomination through the Senate’s blue slip tradition. U.S. attorney nominees typically require blue-slip approval from home state senators as part of the confirmation process.
“When I saw that he got approved by those two men [Kaine and Warner], I said, ‘Pull it because he can’t be any good,” Trump said, adding that he wanted Siebert “out.”
Trump said as much on social media, too, when on September 20 he called Siebert a “Democrat-supported” “woke RINO” “with a really bad Republican past,” and said “That’s why two of the worst Democrats PUSHED him so hard.”
However, at least according to Siebert’s Wiki entry, the two senators had already given their approval to Siebert in May, so although that might have made Trump uneasy, I assume it was not the reason Siebert was asked to leave, and that his refusal to indict Comey and James was, if not the total reason, in the nature of a final straw.
More on the nuclear option for the confirmations:
The sequel vote comes as Republicans begin their process to invoke the so-called “nuclear option” in the Senate to break the Democratic hold on scores of President Donald Trump’s nominees for various executive branch vacancies.
Democrats have for months leveraged the upper chamber’s procedure to grind consideration of Trump nominees to a screeching halt. Many of those appointments, such as U.S. attorneys, are traditionally confirmed in the Senate on voice votes or by a process known as unanimous consent. Senate Minority Leader Chuck Schumer has framed the blockade as a necessary move to scrutinize the president’s nominees, but Republicans have lambasted it as rank partisanship.
Now, the Senate’s GOP leadership is preparing to implement a rare rules change permitting lawmakers to consider Trump nominees in large batches to speed up the confirmation process. The so-called “nuclear option” alters Senate rules on a simple majority vote rather than the typically required two-thirds majority.
Among the nominees who have been subjected to Democrats’ hold were a group of U.S. attorney nominees for vacancies in 10 states, all of whom had previously been advanced out of the Judiciary Committee on bipartisan voice votes. The panel has historically conducted such informal ballots on White House nominees for federal prosecutor positions.
Iowa Senator Chuck Grassley, the panel’s chairman, has twice taken to the Senate floor and requested unanimous consent votes on those appointees, but the Democratic blockade and a separate procedural objection halted their confirmation.
Republicans managed to get this done by September 24, 2025, only six days before the Comey statute of limitations was to ran out. Their action freed up approval of 100 blocked Trump nominees. But by then, the news had broken just five days earlier that Siebert wouldn’t approve the indictments of Comey and Adams, and he’d been forced out. If you consider the timing, no wonder the appointment of Halligan and the subsequent filing of the Comey indictment were so very rushed.
My guess is that, despite Halligan’s inexperience in trying criminal cases, she was nevertheless appointed because Trump knew that, as a Trump loyalist rather than an unknown entity, she would at least try to indict Comey and James in a timely fashion, after Siebert had failed to do so. Who else would be willing to take on the task with so very few days to prepare? It was a longshot, to be sure, but he must have thought it worth the try. And it had to be another interim appointment, because there was simply no time left for hearings and Senate confirmation of a new nominee, and then case preparation. And although the statute actually provided for the district court to name the replacement for interim appointments, there was almost certainly no time left for that, either. In fact, even if someone had been instantaneously appointed, the case preparation would have been rushed to an extreme degree.
Would the Senate have confirmed Halligan had there been time? I have no idea, but I suspect that Trump would not even have appointed her at all had there been more time; he would have chosen someone more experienced.
At any rate, this was not a simple sequence or a simple situation. It was a chain of interlocking events of some complexity.
Here’s Jonathan Turley, whose opinions I nearly always respect, on the ironies in the dismissal of the Comey and James cases:
Law seems to have become entirely improvisational in the age of Trump. James and Manhattan District Attorney Alvin Bragg adopted highly novel legal theories to pursue Trump in New York, including Bragg’s revival of a dead misdemeanor charge and its conversion into a multi-count felony indictment. Both cases were denounced by experts across the political spectrum as the raw weaponization of the legal process.
However, James is entitled to every bit of the due process and procedural protection that she denied Trump. Rushed to completion in the final days before the statute of limitations expired, these indictments proved a target-rich environment for defense counsel.
When the Comey and James indictments were filed, many of us in the legal profession noted a couple of problems. First, the James indictment seemed disjointed after the denial of a key charge. With time running out, Acting U.S. Attorney Lindsey Halligan quickly stitched the remaining counts together and filed the indictment. It was ad hoc and hardly ideal.
The time element was key. Also, note that we still are not absolutely certain what Siebert’s position was – it’s merely “reported” (although I do assume the report is true):
The main problem we identified was Halligan herself. The former private counsel for Trump was appointed acting U.S. attorney after the removal of her predecessor, Erik Siebert, who reportedly resigned after expressing reservations about the legal basis for the indictment.
When did it become clear – if it indeed did become clear, which I will assume was the case – that Siebert would not cooperate with an indictment? The public only heard about it late in the game, in mid-September. Turley also mentions the controlling statute, which doesn’t even require the Senate to act:
The problem is that a federal statute, 28 U.S.C. § 546, governs the appointment of interim U.S. attorneys when a vacancy arises. A president has 120 days to appoint such an official while awaiting a Senate-confirmed replacement. Siebert had already used that 120-day period, and the statute mandates that, after its expiration, the district court appoints the acting U.S. attorney.
While the Justice Department has argued in good faith that the law can be more broadly interpreted, other judges have supported the plain meaning, including a New Jersey court that disqualified another former personal counsel for Trump, Alina Habba, from serving as U.S. attorney.
So even the meaning of the statute isn’t as clear as it might initially seem. But the biggest issue by far was time. As Turley writes:
None of this means the defendants are innocent of the underlying criminal acts. Rather, these rushed indictments were highly novel—and novelty is rarely good in a criminal indictment.
Notably, some of us have observed that the indictment against former Trump National Security Adviser John Bolton in Maryland is the strongest of the three cases. The administration has indicated it may in fact be adding charges.
He also pointed out, as I said in my previous post, that the Letitia James case can be re-filed. It’s the Comey case that is especially at risk.
It seems especially ironic. Comey’s crimes – or wrongdoing, whether or not any criminal acts can be proven – were political in nature. Trump’s retaliation is at least partly political as well, although I submit that it would be a terrible thing for the country in general if Comey suffers no consequences. But the reason the prosecution of Comey was rushed and perhaps botched was also politics crossed with time. The Biden administration was never, never ever, going to prosecute Comey or James. Au contraire. And of course if Kamala Harris had been elected, there would have been no indictment of Comey or James, either. Only after Trump’s election could it happen, but by that time the statute of limitations on Comey made the time available to prepare a case short.
Politics also was probably working with Siebert, in that GOP-appointed prosecutors are much less likely to stretch the law than Democrats are. He seems to have used the time-honored rule, jettisoned by the “get Trump!” group, that goes like this:
According to Justice Department guidelines, prosecutors are generally barred from bringing charges unless they can prove a defendant will “more likely than not be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal.”
The case against Comey may not have met that high standard, even had there been enough time to prepare properly. I certainly don’t know. But I can assure you that, had the parties been reversed and it had been Democrats trying to do this, the strength or weakness of the case wouldn’t have mattered and the US Attorney would have brought the case anyway. I actually agree with the high standards, but it leaves Comey’s obviously outrageous conduct unpunished, which is also a bad outcome. It’s ironic, but there it is.
Politics (the blocking of judicial approval by Democrats) and then time constraints made it nearly impossible for the Senate to vote on Siebert’s replacement or for the district court to appoint an interim one in time to prepare a proper case. And so Comey may go free, as in the words of Obama’s old buddy Bill Ayers: “Guilty as sin, free as a bird — what a country, America.”
As excellent as Turley usually is on legal matters, Alan Dershowitz is usually even better – as he is here, where he gives a succinct and clear description of what happened with this case and the prosecution, and what the future might hold for both cases. So I’ll just let him have the last word:
Dershowitz points out that the judge was obviously biased against Halligan when she included the snarky comment about Halligan’s lack of experience. Halligan’s experience or lack thereof is irrelevant in this case. How can you expect a fair decision from a judge who can’t refrain from making personal, unprofessional attacks?
Keeping in mind that THIS is the Obama Judiciary’s M.O.:
“The Selective Outrage Of Judge James Boasberg”—
https://www.zerohedge.com/political/selective-outrage-judge-james-boasberg
Which post (along with many others) shows why Turley’s such a valuable member of the commentariat.
Right or wrong it’s another brick in the wall.
The way the DOJ and other legal venues have been used as political weapons is a travesty. Beneath the blindfold, Lady Justice is weeping. And so am I.
Comey should at least have to spend some time and money trying to justify Crossfire Hurricane and his lies.
As the bad-ass Letitia has proclaimed about Trump, “No one is above the law.” Just so, and it’s Karma for you baby!
The mortgage applications have legible warnings about false statements. She forgot to read them?? Ha, ignorance is no defense. Book he, Dano!
“The problem is that a federal statute, 28 U.S.C. § 546, governs the appointment of interim U.S. attorneys when a vacancy arises. A president has 120 days to appoint such an official while awaiting a Senate-confirmed replacement. Siebert had already used that 120-day period, and the statute mandates that, after its expiration, the district court appoints the acting U.S. attorney.”
The idea that there is only one 120 day period is an interpretation of 28 U.S.C. § 546. It certainly doesn’t lay it out that way in the text.
Another interpretation is that an interim attorney can only serve for at most 120 days after which the office falls vacant (paragraph (c)(2)), at which time the Attorney General can again appoint an interim attorney to a vacant office (paragraph (a)).
The problem with that, TomR, is that a future Chief Executive could just Daisy chain “temporary” appointments every 120 days indefinitely, without ever submitting to Senate approval, and thus disrupte the checks and balances of Executive, Legislative, and Judicial branches.
@ TomR and BJ: but wouldn’t it also be reasonable [although not explicitly identified in the statute?] to then expect the president to nominate a replacement for the 120 day place holder and for the senate to confirm that nominee (or reject him/her) during those same interim 120 days. Could include formal nomination of the place holding attorney of course.
That is what I would infer from the provision in the law for a temporary position; and that 120 days would and should be enough time to effect this process.
Then again, no one ever said politics had to be logical or efficient [and sometimes preferred that it not be too efficient].
It strikes me that either via an amendment or suitable legislation, that the Congress [or in this case just the senate] should be required (under penalty of losing their respective offices?) of devoting their full attention to confirming presidential nominees over a 4 to 5 month period after a new presidential term begins. Of course the president should be devoting sufficient energy to supplying nominations. Meanwhile, the House can get to work on the budget resolution and then the 12 spending bills – no more CR’s.
This probably also means the blue slip etiquette probably goes by the wayside. If that practice started in 1917, I am not sure if that relates to the 17th amendment in any way, or just how it might improve or reduce the state level federalization structure, i.e., the influence of state legislatures/ governments on federal practices and policies.
The federal statute seems to have the “atmosphere” that the President will nominate a candidate for attorney whom the Senate then confirms or rejects; meanwhile, while nominated, (assuming the candidate has not previously been rejected by the Senate (since the most recent confirmation to that office)) the candidate serves as interim attorney.
This way, if the Senate delays acting on a nomination, the candidate serves as interim for as long as it takes. If the President insists on re-nominating a rejected candidate, the re-nominee cannot serve as interim.
But the statute certainly does not establish things that way. Sigh. Of course the Senate will always confirm or reject a nominee within 120 days … Of course the President will always nominate the interim attorney … Of course people will always be reasonable …
TomR, BJ, and R2L. I see a serious separation of powers issue. If the Senate (whether the minority or the majority) runs out the 120 day clock, the right to appoint a US Attorney moves from the executive to the judiciary. Why not toll the 120 days until the Senate holds a vote? If the Senate refuses to vote (for whatever reason), then the interim USA remains in office indefinitely–but that’s a decision made by the Senate. If the Senate refuses to act, it’s a political question that the courts should stay out of and the voters can address. If the Senate votes down a nomination, the unsuccessful interim candidate can stay in office for 120 days while the executive pursues alternatives–if no USA is confirmed in that period, require the President to fill the office from among Justice Department confirmed appointees (the are plenty of “assistants” and “deputies” who require Senate confirmation to choose from–all of whom have been confirmed). The power of the president to keep unconfirmed nominees in office is limited–but the president’s powers aren’t transferred (unconstitutionally) to the judiciary. And I’m one of the 330 million people not named John Roberts who believe that there are indeed “red judges” and “blue judges” and to give them the executive’s exclusive power to staff the executive branch is appalling.
Another excellent analysis from Our Gracious Hostess, with some additionally enlightening comments, to boot! With so much nuance and so little precedent, this will give all the lawyers and judges who are waiting for the starting gun to go off something to do over the next two years while the mess gets run through the legal disgronification machinery. Meanwhile, allow me to posit a more streamlined version of the arguments to be made pro and con: Democrats are always right and morally superior. Republicans are always wrong and their motives are always venal. You’re welcome.
On re-designing the vacancy statute:
You also have to consider events not mentioned (so far). For example, what actions are permitted in the event an interim attorney dies / resigns / is fired? Can another interim be appointed? What happens to the 120 day clock? What if he was already beyond the 120 days in which the Senate was supposed to act?
In my Computer Science background, I have found that just enumerating scenarios of what you want to happen invariably leaves lots of “corner” cases unspecified. Better to do a systematic exploration of the state space considering all transitions. But this is hard.
In the future, even if the Democrat DOJ were against the clock in filing the indictments to send Pete Hegseth to prison, some judge would come along and rule to extend the deadline. And then, if they still made an error or left a legal loophole open after the indictments were filed, a judge would allow them to correct it rather than throw the case out.
Democrats isolate themselves to Democrat enclaves which means that even if lawfare is attempted against them, they will be let off by Democrat judges (or juries, if it ever got that far). Republicans almost always have to do business in Democrat enclaves (aka “big cities”), which means that successful lawfare can be brought against them at any time.
Chad King: “If the Senate votes down a nomination, the unsuccessful interim candidate can stay in office for 120 days while the executive pursues alternatives–if no USA is confirmed in that period, require the President to fill the office from among Justice Department confirmed appointees (the are plenty of “assistants” and “deputies” who require Senate confirmation to choose from–all of whom have been confirmed).”
When I first read that, I agreed it was a promising and viable/ reasonable position. Then I thought about it a little more and wonder “what if there are no (or not yet) confirmed folks aligned with the current president’s agenda (a room still full of Biden appointees?). That agenda could be stymied out of the gate?
TomR: “Better to do a systematic exploration of the state space considering all transitions. But this is hard.”
Agree, it can be very hard indeed. But in any case a substantial effort at the attempt is still justified to minimize unintended consequences. It might even get easier with more practice.
Poah Tish. She nevah gonna be pretty.
R2L. Every statute has the potential for unintended consequences. In my scenario, the President nominates someone for USA on Day 1 and they immediately start “acting” as USA. The 120 day clock doesn’t start to run until a vote is held. If the Senate votes on Day 2 to reject the nomination, the President would have until Day 122 to replace the “acting USA.” Your concern would come into play if the Senate raced through a rejection of the “acting USA” but didn’t act to confirm any of the President’s other Justice Department nominees. I suppose that’s possible–but unlikely. For your concern to come to fruition, I suspect it would take a Senate in the control of the opposing party (which has happened many times in my lifetime) that was unwilling to let the President choose his team and a President unable to find common ground with the Senate. In addition, the President doesn’t require Senate consent to fire political appointees–just to hire them. So the President could fire all of his predecessors’ appointees and present the case to the people that the Senate’s refusal to confirm his nominees is the problem. But your excellent point reinforces TomR’s 9:50AM point that only when the drafters sit down and explore “what if” scenarios, can a coherent statute result. I remember in my first year of law school, a professor gave us an in-class assignment to draft a “simple” statute to do something uncontroversial (I don’t remember the topic of the statute)–it was easy to draft a statute that did what you wanted–but hard to draft a statute that didn’t have unintended consequences. The longer the statute, the more unintended consequences. Turn K Street’s bandits loose on the Congressional staffers and it’s clear why many statutes cause more problems than they solve.