A ruling against Halligan could threaten the cases she brought against James Comey and Letitia James.
ALEXANDRIA, Virginia — A federal judge expressed deep skepticism Thursday about whether a federal prosecutor handpicked by President Donald Trump to bring criminal cases against his political rivals was legally appointed to the role.
It’s unclear whether U.S. District Judge Cameron Currie’s open doubts about the appointment of Lindsey Halligan will sink the cases against former FBI Director James Comey and New York Attorney General Letitia James. But the Clinton-appointed judge’s ruling, which she said would come before Thanksgiving, could derail both.
Currie, one of two judges who have reviewed the grand jury transcripts related to the indictments, revealed little about the secret proceedings but said they confirmed that “Ms. Halligan acted alone,” without any other government attorneys in the room. That could threaten both cases if Currie ultimately decides Halligan was invalidly appointed as interim U.S. attorney for the Eastern District of Virginia, since no legitimately appointed prosecutor signed the indictments.
Currie seemed particularly concerned that a portion of the grand jury proceedings that led to Comey’s indictment was “missing,” leaving certain aspects of Halligan’s interactions with the grand jury unreviewable. Currie said that it appeared at about 4:28 p.m. on the day the indictment was returned in September, there was no court reporter in the room to transcribe the proceedings, leaving no record of the final minutes of the grand jury’s session.
Comey was charged with obstruction and making a false statement to Congress related to testimony he gave in 2020 to the Senate Judiciary Committee about the FBI’s investigation into links between Russia and Trump’s 2016 campaign. James was charged with bank fraud and making false statements to a financial institution related to a home loan she obtained for a secondary residence in Virginia. Both have pleaded not guilty.
At Trump’s urging in a September social media post, Attorney General Pam Bondi quickly appointed Halligan as the interim U.S. attorney for the Eastern District of Virginia, just days after Trump helped force out the office’s previous leader, Erik Siebert, over his resistance to bringing both cases. But attorneys for Comey and James said Halligan was ineligible to take the job because Siebert had already held the temporary role for the legal limit of 120 days.
The risk for the Trump administration is particularly acute in the Comey case because Halligan secured the indictment just days before a Sept. 30 legal deadline that has now elapsed.
The Thursday hearing lasted a little over an hour. Comey was present in the courtroom, along with several members of his family in the public gallery, while James was not in attendance. Halligan, who was in court and seated at the prosecution table, did not address the judge.
Currie, based in South Carolina, was tapped to address Halligan’s qualifications because of concerns that doing so could pose a conflict for judges in the Virginia district who routinely handle cases brought by the U.S. attorney’s office Halligan is overseeing.
Justice Department attorney Henry Whitaker urged Currie to treat questions about Halligan’s appointment as, at most, a “paperwork error” and emphasized that Bondi had reviewed the grand jury materials and agreed to retroactively “ratify” Halligan’s actions, even if her initial appointment is deemed invalid.
But Currie said the missing component of the grand jury transcript called into question the sufficiency of Bondi’s review.
“It became obvious to me that the attorney general could not have reviewed those portions of the transcript presented by Ms. Halligan,” Currie said. The judge also questioned why Bondi signed a statement saying she had reviewed Halligan’s actions before the grand jury when transcripts of some of that presentation “did not exist.”
“She couldn’t have,” Currie said.
Whitaker said Bondi had reviewed the “material facts” of Halligan’s grand jury presentation, which showed that “the grand jury made a decision based on the facts and the law.”
A Justice Department spokesperson suggested Currie’s concerns about “missing” components of the transcript were unfounded: “There is no ‘missing time.’ That time period refers to when the jurors were deliberating behind closed doors, which would not be included in a transcription. This isn’t a story.”
Attorneys for Comey and James said it’s not possible for the Justice Department to retroactively empower a prosecutor who acted without legitimacy to secure an indictment. James’ lawyer, Abbe Lowell, said that such a ruling would mean that private citizens like “Steve Bannon or Elon Musk” could secure a grand jury indictment only to have it blessed later by the Justice Department.
In one head-turning moment, Whitaker said the Justice Department takes issue with one aspect of U.S. District Judge Aileen Cannon’s ruling last year tossing special counsel Jack Smith’s prosecution of Trump on charges related to classified documents kept at Mar-a-Lago. Whitaker said Cannon went too far when she questioned the attorney general’s appointment power in a way that he said could undercut the authority of most of the lawyers working at DOJ headquarters.
“We do disagree with that,” Whitaker said. The issue could have relevance for Halligan’s appointment, since Bondi’s recent order claims to retroactively appoint Halligan as a DOJ prosecution under several alternative statutes if her interim U.S. attorney appointment is deemed invalid.
Defense attorneys also pressed Currie to treat her role in a more grandiose context: the preservation of the separation of powers and checks on presidential power. Blessing Halligan’s appointment, they said, would effectively gut the Senate’s role in confirming U.S. attorney nominees, since all presidents could make end-runs around that constitutional requirement.
“This case is a bulwark against one branch aggrandizing its power against another,” Lowell said.
“There would never be any reason to go through Senate confirmation again,” an attorney for Comey, Ephraim McDowell, told Currie.
Currie seemed to tip her hand in her first question Thursday, asking if Comey’s defense attorneys had seen the ”declination memo” related to the case. That alluded to news reports that career prosecutors in the U.S. attorney’s office prepared a detailed analysis of the potential charges and concluded that they were too flimsy to pursue.
Defense lawyers revealed they had not yet seen the declination memo but hoped to obtain it during the discovery process before trial.
The judge also seemed intimately familiar with recent decisions in other courts that found three of the Trump administration’s other picks for temporary U.S. attorney roles were illegitimate. In those cases, judges ruled that even though the appointees were disqualified, the cases they supervised could continue because other career prosecutors had signed off on them.